Interracial Couple Denied Marriage License

A justice of the peace in Hammond, Louisiana has refused to issue a marriage license to an interracial couple.  In the last few posts here, we’ve been talking about “anti-miscegenation laws” intended to prohibit intermarriage between blacks and whites. Most of this discussion has been framed as part of a distant past influencing the present in various ways, and in fact, that history continues to live as illustrated by the story about the Louisiana justice’s decision that is lighting up the Internet tonight.  But, it’s ok, because you know, he’s “not a racist” and he’s just “concerned about the children” the couple might have. Here’s the story from Associated Press:

Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long. Neither Bardwell nor the couple immediately returned phone calls from The Associated Press. But Bardwell told the Daily Star of Hammond that he was not a racist.

“I do ceremonies for black couples right here in my house,” Bardwell said. “My main concern is for the children.”

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

“I don’t do interracial marriages because I don’t want to put children in a situation they didn’t bring on themselves,” Bardwell said. “In my heart, I feel the children will later suffer.”

If he does an interracial marriage for one couple, he must do the same for all, he said.

“I try to treat everyone equally,” he said.

Thirty-year-old Beth Humphrey and 32-year-old Terence McKay, both of Hammond, say they will consult the U.S. Justice Department about filing a discrimination complaint.

Humphrey told the newspaper she called Bardwell on Oct. 6 to inquire about getting a marriage license signed. She says Bardwell’s wife told her that Bardwell will not sign marriage licenses for interracial couples.

“It is really astonishing and disappointing to see this come up in 2009,” said American Civil Liberties Union of Louisiana attorney Katie Schwartzman. “The Supreme Court ruled as far back as 1963 that the government cannot tell people who they can and cannot marry.”

The ACLU was preparing a letter for the Louisiana Supreme Court, which oversees the state justices of the peace, asking them to investigate Bardwell and see if they can remove him from office, Schwartzman said.

“He knew he was breaking the law, but continued to do it,” Schwartzman said.

Just to review, it is legal for interracial couples to marry in the U.S. but it used to be illegal.   As I wrote about here awhile back, the case that overturned this stupidity was Loving v. Virginia decided in 1967  (there’s also a Lifetime TV movie about the case).   And, if you’d like to school yourself on the particulars of where and when interracial marriage was illegal in the U.S., check out this cool, interactive map about interracial marriage laws (h/t Nancy Netherland for this resource).

And, to further review the evidence, children of interracial marriages do not suffer in when compared to other children provided that they grow up in an environment that’s accepting of diversity and children of interracial marriages.   If children of interracial marriages encounter racism (and other structural disadvantages), then they’re more likely to experience stress, and health-related risks due to that increased stress, such as smoking and drinking. That’s a result of racism,  and yet another reason to work to end racism.  It should not be used – turning logic on its head – as a reason to perpetuate racism.  

Misgivings Because Sotomayor Is Now a Member of the Supreme Court

With the Senate’s confirmation and swearing in now out of the way, Sonia Sotomayor is now a Supreme Court Justice. Liberal whites, as well as many Latinos, are jubilant at what they view as a great step forward for Latinos.

After a time of reflection, however, the realities of racism bring a sobering realization: her ascent to the Supreme Court is both a personal triumph over anti-Latino racism and thus a reminder of the deeply embedded racist apparatus of this country.

Sotomayor is a brilliant woman whose achievements were won through great discipline and admirable effort. Yet she is heralded as the “first Latino” to become a member of the Supreme Court by almost all commentators, left, right, and center. Clearly, her master status is “Latino.” Her great achievements and qualifications lie somewhere in the background.

The appointment of a white Protestant man to the Supreme Court attracts only a modicum of attention, and virtually never to his whiteness or maleness. That is seen as normal. Once again, the deep, unconscious white racial frame shapes common sense and blinds us to the fact that white privilege is the cause of both the ordinariness of white accomplishments and the momentousness of Latino achievement.

A danger that lies ahead is that Sotomayor’s appointment may be interpreted by many conservative and “mainstream” observers as further evidence that “race” is a thing of the past. However, even as Sotomayor succeeds as a justice, unauthorized immigrants are still widely exploited and persecuted, the Spanish language is routinely assailed and vilified, and Sotomayor’s homeland, Puerto Rico, remains a nation under U.S. control.

Sotomayor has been accused by her conservative opponents for her putative “activism” as a judge. As far as I’m concerned, it was not her so-called activism but her encounters with racism that helped her see past the white racial frame and make such great achievements.

A Belated Milestone in Racist America: Judge Sonia Sotomayor Confirmed

Judge Sonia Sotomayor was just voted on in the U.S. Senate and was confirmed in a 68-31 vote, with ailing Senator Kennedy not present but also a supporter. We now have the first woman of color and the first Latino ever to serve on the U.S. Supreme Court. (She is also only the third woman out of about 111 justices who have ever served!)sotomayor (Photo Source: Wikipedia)

Senator Robert Menendez (NJ), the only Latino Democratic senator had this to say:

History awaits, and so does an anxious Hispanic community in this country the Senate’s lone Hispanic Democrat and the head of his party’s campaign arm, just minutes before the vote. When she places her hand on the Bible and takes the oath of office [scheduled for Saturday], the new portrait of the justices of the Supreme Court will clearly reflect who we are as a nation, what we stand for as a fair, just and hopeful people.

Yes, finally. There are about 47 million Latinos now in this country of about 300 million.

Jim Crow Racism Reported in Philadelphia, Yet Again

In his pathbreaking book North of Slavery, Leon Litwack (quoted by Vann Woodward) showed that Jim Crow segregation was not invented in the South, but long before the end of slavery white northerners used it to subordinate “free” African Americans in the North:

In virtually every phase of existence Negroes found themselves systematically separated from whites. They were either excluded from railway cars, omnibuses, stagecoaches, and steamboats or assigned to special ‘Jim Crow’ sections: they sat, when permitted, in secluded and remote corners of theaters and lecture halls; they could not enter most hotels, restaurants, and resorts, except as servants; they prayed in ‘Negro pews’ in the white churches, and if partaking of the sacrament of the Lord’s Supper, they waited until the whites had been served bread and wine. Moreover, they were often educated in segregated schools, punished in segregated prisons, nursed in segregated hospitals, and buried in segregated cemeteries. (See also the book Dixie Rising)

segWhen white southerners developed Jim Crow for the newly freed enslaved population, they imitated northern segregation strategies, often enhancing it–infamous segregated restrooms, water fountains, lunch counters, and so forth.

We recently noted attempts at Jim-Crow-like segregation in a swimming pool case in Philadelphia, and now we have a lawsuit alleging informal Jim-Crowing of bathroom and water cooler segregation, and other racial discrimination, in a Philadelphia city government workplace. According to a CNN report

Black employees at a Philadelphia, Pennsylvania, waste transfer plant were harassed, humiliated and discriminated against by their supervisor for decades, says an attorney representing two workers who filed a complaint against the city. Among the allegations in the complaint is that for decades . . . [the white] superintendent, limited one restroom to whites only, said the attorney, Howard K. Trubman. The restroom — which he called the “supervisors’ bathroom” — was supposedly for the sole use of upper-level officials with the city’s Streets Department….As far back as 1996, it became apparent to black employees that they were being slighted, said Trubman. They would watch white co-workers walk into the segregated bathroom, conveniently located one floor above Gill’s [the superintendent’s] office. “If you tried to use the bathroom, you might get suspended,” said Leslie Young, a former worker at the facility…. Young said he recalled that a lock was placed on the restroom door, with keys distributed only to white workers. The restroom black workers could use was down five flights of stairs and was “not in the greatest condition,” Trubman said. Some employees were forced to ask … permission before they could make the trip, he said.

Just like when I was growing up in the very segregated South, this is way too familiar a story, but now 50+ years later. And bathroom segregation was not the only thing on the Philadelphia “plantation,” the term the white in charge reportedly used (he says he was kidding) for the workplace:

The issue didn’t end with the bathroom at the facility, which is a transfer station where garbage trucks bring citywide waste to be distributed to various landfills. Black employees complained that they were stuck with the oldest garbage trucks. Whites, they say, were frequently upgraded to newer vehicles…. According to Young, in the sweltering summer of 2007, Gill would only allow whites access to a water cooler kept in his barricaded office. Black employees were forced to use a water fountain elsewhere in the building. “It made me feel like less of a man,” said Young.…When he told Gill about some resentment felt by some of the employees, he said, Gill launched into a diatribe, saying those unhappy at “the Northwest Plantation Station” could leave.

Significantly, the black protest and antiracist counter framing tradition, as reflected in a book the late great African American historian, John Hope Franklin, had a direct impact on these black workers and their protests according to a Philadelphia newspaper:

Recently, after the black workers found in the trash a book titled Runaway Slaves: Rebels on the Plantation, by historians John Hope Franklin and Loren Schweninger, they began to read it for solace and inspiration, Young said. “When this book turned up on our platform in the trash, …it just made us think that this is like slavery again,” Young said. “So we started keeping the book…as our little Bible in the drivers’ shack, where all the black drivers sit and we relax and eat lunch. And we just try to encourage each other to every now and then, when he does something racist to you or that really pisses you off, to read a couple pages of the book, to show you that this is not the first time this happened, we can get through this, but we got to do it together.”

They protested actively within the department and the city, but got no permanent redress. They took their complaint to the human rights commission (PHRC), but as is the case with many such commissions, nothing got done there either:

Shannon Powers, a PHRC spokeswoman, said that the PHRC deals with several thousand allegations of discrimination a year — 3,382 allegations of employment discrimination alone were initiated in the fiscal year that just ended. “We started the year with 4,393 cases pending from previous years,” she said. If the PHRC hasn’t resolved a complaint within a year, the complainant may take the case to the courts, Powers said.

We have some pretty good civil rights laws in the U.S. but most of them are weakly enforced or unenforced. For the most part whites can discriminate with impunity. Not unexpectedly, the Philadelphia solicitor’s office asserts:

We don’t comment on allegations. … Based on what we know, we have no reason to believe there is any merit, and that will come clear as the litigation proceeds.

The case is set for trial early next year.

Latinos and the White Yoke

(Photo here)
In a recently published article, “Of Race, Gender and Justice,” Linda Chavez, a prominent and influential conservative, reiterates some of the arguments she made before the Senate Judiciary Committee in opposition to the nomination of Sonia Sotomayor to the Supreme Court. This article is a splendid example of the White Racial Framework running full-blast.

Chavez has blown out of proportion Sotomayor’s statement that the ethnicity and sex of a judge

may and will make a difference in our judging.

Sotomayor’s assertion pointed to events experienced particularly by nonwhites and females that may heighten their perceptions in judicial cases. There is nothing radical about this statement. In an instance of poor thinking, Chavez contends that Sotomayor’s statement clearly indicates that Sotomayor

believes that one’s race and ethnicity should determine (my emphasis) how someone will rule as a judge.

The root of the “problem,” in Chavez’ eyes, is Sotomayor’s “identity politics.” Chavez explains that

Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one’s own group are victims in a perpetual power struggle with the majority.

Chavez can call it “Identity politics,” but I see it simply as an accurate description of what many minority members feel. The perception of a socially-ingrained, pernicious U.S. racism against Puerto Ricans is widely shared by many Puerto Rican people and intellectuals, both in the United States and in the island of Puerto Rico.

As I write these lines, The New York Times reported that the Senate Judiciary Committee, in a 13-6 vote, endorsed Sotomayor’s nomination. It was widely predicted so it was no surprise.

Speaking of surprises, I saw a column Chavez published on April 17 of this year. The topic was “Supporting Family Values.” Although the column is not free of “Chavezms,” it praises the “illegal” family and disputes predictions that the “illegals” will never fully adapt.

This is the side of Linda Chavez that I’d like to see more of, to the point that such columns would not be surprising anymore.

Colin Powell on “Reverse Racism” and Sotomayor

Colin Powell - World Economic Forum Annual Meeting Davos 2003
Creative Commons License photo credit: World Economic Forum

Colin Powell has an interesting comment on Judge Sonia Sotomayor in a CNN Sunday interview: (HT/ Thinkprogress)

[She] seems like a gifted and accomplished woman. She certainly has an open and liberal bent of mind but that’s not disqualifying. But she seems to have a judicial record that seems to be balanced and tries to follow the law. And so I hope we do have a spirited set of hearings. And Supreme Court confirmation hearings tend to always meet that standard. And she ought to be asked about everything from both the left and the right. What we can’t continue to have is to have somebody like a Judge Sotomayor who is announced, and based on one simple tricky but nonetheless case that the Supreme Court has now decided have her called a “racist,” or a “reverse racist” and she ought to withdraw her nomination because we’re mad at her.

Fortunately the senators who will sit on this hearing in the Judiciary Committee after a few days of this kind of nonsense said, “Let’s slow down. Let’s examine her qualifications and the way we’re supposed to at a confirmation hearing.” […] And when you have non-elected officials such as we have in our party [Limbaugh] who immediately shout racism or somebody who is quite prominent in the media says the only basis upon which I could possibly have supported Obama was because he was black and I was black even though I laid out my judgment on the candidates, then we still have a problem.

At this rate, will the Republican party get down to just ten or so serious Latino and black and Latino members sometime soon?

It is interesting too how often whites control the public discourse and terminology these racial discussion are carried out with — with such post-civil-rights-movement, white-invented terms as “reverse racism” and “model minority” — not to mention the basic racial word “white,” which was created in the 17th century in its modern racial sense.

Racism and Networks: Missing Tens of Thousands of Able Workers of Color

The Ricci case we have discussed touches numerous employment discrimination issues, some of which Ginsburg brought up in her dissent. I have been reading research by Marc Bendick, Jr., and Mary Lou Egan on racial discrimination and inequality in advertising agencies, many part of large global firms. They found that African Americans make up just 5.3 percent of advertising managers and professionals, but the relevant Census Bureau and EEOC data suggest this percentage should be roughly 9-10 percent. Their study found black employees tended to be hired for segregated advertising positions—such as those dealing with customers of color–with less influence and pay than white employees with comparable credentials. Black college graduates with advertising positions were found to be paid about a fifth less on average than their comparable white colleagues.

Many employers, in the private and public sectors, complain they cannot find enough “qualified” employees of color. So, if they do happen to take any remedial action, they tend to emphasize educational strategies (scholarships for students, etc) to improve job situations of people of color. Yet, as Bendick and Egan point out, this is not the main reason for low percentages of black employees. The more important reason is the

persistent unwillingness by mainstream advertising agencies to hire, assign, advance, and retain already-available Black talent.

This unwillingness is rooted in a racist framing of black Americans as employees, and positive preferences for white employees like themselves. One lawyer described this employment arena as one where “favoritism rules and merit is cast aside.”

White networks run the country’s major historically white institutions, including most large companies. Job networks are part roysterof the structure of systemic racism. Deirdre Royster examined black and white students at a technical college and found that, even though they worked harder and did better in their training, black graduates had much more difficulty finding jobs than white students. White networks gave white students much better opportunities. Lack of access to important networks usually has a very negative impact. Compared to comparable white workers, black workers must spend much more time and effort looking for work over their careers. This, of course, makes it harder for them to compete with white workers who have otherwise comparable abilities. Such factors are not even considered in decisions like that involving New Haven–although the dissenting Ginsburg does just touch on the general idea.

Not just in the advertising industry, but in many other employment sectors the central problem is the highly discriminatory practice of white managers operating out of the traditional white racial frame and using predominantly white networks to hire and advance white managers and professionals like themselves.

In this process, as Bendick and Egan underscore in another paper, they typically

ignore the availability of tens of thousands of African Americans with educational and experience backgrounds comparable to whites routinely hired in their industry.

That’s right, tens of thousands. Consider that US reality for a minute. The presence of such very able workers pretty well blows lots of racialized arguments some whites make about not being able to find “qualified” employees of color right right out of the proverbial water. They just do not care to look for them. White power and privilege, again.

Racist Thinking at the Supreme Court—Again

Well, our least democratic major political institution, the Supreme Court, ruled today in a 5-4 RICCI ET AL. v. DESTEFANO ET AL decision that white men had been the victims of racial discrimination under Title VII of the 1964 Civil Rights Act. Written by conservative Justice Anthony Kennedy, and joined in by the court’s far-right justices Roberts, Scalia, Thomas, and Alito (damaging gifts of the Ford, Reagan, and Bush administrations), the overview summary starts thus:HONKING HORN OF JUSTICE FOR NEW JERSEY FIREFIGHTERS--BEEP BEEP
Creative Commons License photo credit: roberthuffstutter

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. . . The City’s action in discarding the tests violated Title VII.

That is, they discriminated against the white men who took the test, and would under the city’s decision have to take a new, presumably less discriminatory test. Actually, no one was discriminated against in actual promotions, as the city did not promote anyone, white, black or Latino. The city decided that because no African Americans scored high enough to be in the top promotion pool the tests needed to be replaced by better more-ability-based testing. However, the five racial conservatives on the court argue that in the record there is no “equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.” They, of course, are wrong on the social science evidence.

In her dissent, however, Justice R. B. Ginsburg (joined by Souter, Breyer, and Stevens) not only took the unusual step of giving her dissent orally in court but argued effectively (perhaps because she knows how discrimination actually works?) against the majority decision, running rings around them. She gives a rather sociological dissent starting with this opening line:

In assessing claims of race discrimination, “context matters.” [Grutter v. Bollinger, 539 U. S. 306, 327 (2003).] In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.

That is, there is this little matter of systemic racism. The majority justices completely ignore the 346-year history of slavery and Jim Crow segregation, which has been followed by much successful foot-dragging for four decades now in regard to undoing deep structures of white privilege, but the majority want to ignore that systemic-racism reality and its continuing impact.

One powerful argument that Ginsburg makes is that New Haven’s population is now a majority of people of color, yet the city has disproportionately few fire department officers who are black and Latino. She notes other (some nearby) cities that do not depend on New Haven’s discriminatory testing and thus get a more diverse workforce:

The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.

The right-wing majority leaves out other important systemic and historical facts, as she notes:

Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.

That is, a profession that was aggressively white-controlled until well past the 1970s, and in New Haven now has great underrepresentation of blacks and Latinos in ranks like fire captain. One problem that the media has not assessed is the makeup of the exams, with 60 percent of the testing score based on the written exam, and only 40 percent on the oral exam, which got directly at leadership and ability issues. The testing showed huge disparities:

On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. … More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. … As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans.

She notes that numerous white firefighters had important social networks that helped them with the exams, including getting books and other materials quicker and cheaper than the first-generation African American and Latino firefighters. She then cites fairly extensively the testimony in the case of Dr. Christopher Hornick, an industrial psychologist with 25 years’ experience in firefighter testing. He testified that New Havens’ testing had a “relatively high adverse impact” and questioned the heavy emphasis on written over oral and related leadership exams:

We know that it’s not as valid as other procedures that exist. . . I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.

Ginsburg points out that the right-wing majority ignores Congress’s intent to accent both “disparate treatment” and “disparate impact” in its various civil rights laws:

Title VII’s original text, it was plain to the [1971 Griggs] Court, “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” …Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. …Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, .. generally forbids. ..This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. …. Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today [Scalia’s concurring opinion] . . this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority . . . participation”—something this Court’s equal protection precedents also encourage.

This is the heart of the case. She is siding with the 1971 Griggs case that argued that practices that are fair in form, but discriminatory in operation (that is, have a serious disparate impact) are in fact banned by the civil rights laws–especially if alternative procedures can be found, as is easily the case in this firefighters’ case. Bridgeport, Connecticut, is mentioned as having solved the problem with fairer testing for firefighters and getting the needed social-racial diversity–a 20-miles-nearby example. Why not New Haven?

The Supreme Court is an undemocratic institution provided to us in 1787 by some white male slaveholders and their merchant friends, and today it is heavily skewed in a right-wing direction and populated by a quite unrepresentative group of folks–not unlike the skew in the fire captain’s class in New Haven. These justices have here provided another good example of how contemporary racism works. The right-wing majority is operating out of the old white racial frame and pretending that we live in a country with little institutional discrimination, and no centuries-old history of slavery and Jim Crow. We have been an officially “free” country only since 1969, and all the justices on the court grew up under a very undemocratic country with official racial apartheid. Yet cases like this one operate to deny that recent apartheid reality and its continuing consequences in public and private employment settings.

Supreme Court Does Not Invalidate the Voting Rights Act: At Least for Now

At the excellent Election Law blog / Rick Hasen has a very good analysis of the Supreme Court decision today on the Texas municipal utility district’s fight to get out from under the voting rights law (rarely achieved)–which was to give the district a possibility to get out but not to deal with the constitutionality of the Voting Rights Act. This law is a centerpiece of the 1960s civil rights movement and is a continuing barrier to various attempts to restrict the rights of voters of color–which white-conservative groups still often try to do.

Indeed, over the last few decades, black voters have continued to face attempts to reduce the efficacy of their political participation. Research by Chandler Davidson and Frank Parker has demonstrated that electoral discrimination persists in such forms as vote dilution, gerrymandering, the changing of elective offices into appointive offices, and unnecessary revisions in qualifications for office. Numerous strategies have been seen in each of the presidential elections in recent years.

Considering today’s decision, Hasen recalls his worried commentary not long ago at Slate:

“Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental….What’s especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there’s not much they can do short of holding the act as broadly unconstitutional….The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”)

On today’s decision, Hasen see Chief Justice Roberts as backing off on his hostile view of the Voting Rights Act, for now:

It is clear he thinks the Act is unconstitutional under the “congruence and proportional” standard, and he’s on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I’ve repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.


Despite Chief Justice Roberts’ longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5’s constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day.

It is significant that, even with Democrats in control of Congress and an African American president, that a few unelected right-wing judges can threaten to end the civil rights progress in voting and other areas. This shows how fragile some civil rights gains really are, and how easily this often undemocratic system of ours can backtrack.