Thursday, February 28, 2013

Racism At The Supreme Court

The Supreme Court heard oral arguments in Shelby County v Holder yesterday, the Voting Rights Act case. I haven't had a chance to read the full transcript but I managed to pick up a few choice morsels here and there, which I will share in a moment.

But let it be said at the outset: it is hard to describe how sad and angry I am. I think of one of my heroes, John Lewis, and I wonder how he goes on. After all the beatings and death threats he just kept going, kept loving. I can almost wrap my mind around that -- a life spent absorbing the hatred of others culminating in redemption and the victory of your cause. How, then, must he feel to see the things he suffered for being rolled back?

This growing effort to entrench white privilege even further is why I do not assume our current periodization of the civil rights movement is the one historians will embrace a century from now. We're still in it. Its gains remain contested and its failures are yet to be adequately addressed. If the court rules against section 5, as seems likely, it will be the clearest signal yet that a new movement is needed.

Why, I ask myself, do John Lewis and others of his generation have anything other than hatred for the United States? How do they not collapse in rage and bitterness? As a Christian, I am supposed to have the love of Jesus in my heart, but Lewis and others like him have tapped into a measure of love that I don't understand.

A preemptive note on all the harsh language I am sure to employ below, complete with fulsome use of the racist label: I know most people don't take kindly to being called a racist. I know that people like me are seen as constantly playing the race card. Do you have any idea how tired I am of trying to give people an out? Do you have any idea how much emotional and mental energy I spend trying not to call people racists? I'm constantly searching for less likely explanations; over and over I make excuses for people and patiently acknowledge that they may be well meaning but misinformed. I'm tired of that. If you don't want to be known as racists (ahem, certain supreme court justices), stop doing and saying racist things. Stop it. For my sanity's sake, for the country, for the sake of your eternal soul, stop it. Do you have any clue how offensive it is, how nauseating it is to hear echoed in the supreme court of the United States the very same arguments I find while doing my thesis research on southern segregationists over 40 years ago?

Let's take a look at something Justice Scalia said yesterday:
This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress. The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.  
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.  
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.  
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?
In Scalia's mind, the act designed to give equal voting rights to all is a "racial entitlement." Moreover, he is greatly concerned that this law will be unending and that it produces, in effect, unfair accumulations of minority voting power -- "black districts by law just about now." Also, like slaveholder spokesman John C. Calhoun and segregationist leader John Stennis, he articulates a view of the constitution that sees protecting states rights as more important than the protection of individual rights.

Let's unpack this a little bit more. The second idea has merit in its own right. We should be careful not to treat states disparately without carefully considered due cause. But as Justices Kagan and Sotomayor pointed out, the states covered by section 5 do in fact continue to correspond to higher levels of litigation and voting rights discrimination. Much of this evidence was assembled by congress when it renewed the act in 2006. Since the covered jurisdictions are not the only places that discriminate, it would make sense to expand section five across the country. But Scalia does not want that either. He'd rather see it repealed, which amounts to saying that because the worst offending states are not the only ones at fault we should just give up.

But the heart of Scalia's critique of the law is that it represents a "racial entitlement" that will go on in perpetuity because no one will have the guts to vote against it. This is a racist argument. Again, to drive home the offense to my reality-denying readers, there is no way to arrive at this statement without your starting assumptions being racist. Unless you're a racist, Scalia's critique would not cross your mind.

Here's why. Scalia is worried about a racial entitlement giving unfair advantages to minorities, and yet the law has been in effect for over 50 years without producing any such thing, nor does he produce any evidence or reasoning for how it might possibly do so in the future. In fact, the situation is just the opposite. Despite the voting rights act, as a percentage of the population whites are drastically overrepresented in elective office in the United States while minorities hold much less political power than their numbers would imply. You have to be a racist to look out at a landscape of institutionalized disproportionate white power and say, gee, I sure am worried about racial entitlements for minorities.

This is an exercise in futility. The choir will be edified and the unconverted will be offended. One of the things I most despise about modern racism is its invisibility to its adherents. I highly doubt, for instance, that Justice Scalia knows he is a racist. That makes the problem all the more intractable and the evils of his character all the harder for him to mend.

Justice Roberts also had a question that was noteworthy for its stupidity. He asked the lawyer arguing for the government this question:
General, is it — is it the government's submission that the citizens in the South are more racist than citizens in the North?
It seems appropriate at this point to ask if Justice Roberts dismisses out of hand any polling or social science research as a matter of principle, or if he just ignores what he happens to find unpalatable. The answer to his question, which the solicitor general was understandably unwilling to answer correctly, is yes. White southerners oppose interracial marriage at significantly higher rates than other whites, for example. Perhaps we've gone so far down the rabbit hole that even that can't be called racism anymore.

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