Two years ago next Thursday, Chief Justice John Roberts walked into the Supreme Courtroom, took his seat in the Court’s center chair, and then, after waiting for his colleagues to dispose of some less-closely watched business, he began to tell a fairy tale about a nation redeemed.
Once upon a time, Roberts began, “voting discrimination against African-Americans was so entrenched and pervasive in 1965 that to cite just one example, less than 7% of African-Americans of voting age in Mississippi had been able to register to vote.” But then, Roberts told the Courtroom, America set aside this past. “There are examples of progress, more poignant than the numbers,” the chief justice claimed. “During the Freedom Summer of 1964 in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. On Bloody Sunday in Selma, Alabama in 1965, police beat and used tear gas on hundreds marching in support of enfranchising African-Americans. Today, both Philadelphia and Mississippi and Selma, Alabama have African-Americans mayors.”
“Our country has changed,” Roberts wrote in the opinion he delivered that day, Shelby County v. Holder. It has wiped away so much of its racist past that the “extraordinary measures” employed by a key provision of the Voting Rights Act could no longer be justified.
Wednesday night, a white man walked into an historic black church in Charleston, South Carolina. He sat inside the congregation for an hour, as churchgoers engaged in Bible study. Then he announced to the African American congregants that they are “taking over our country,” and he opened fire. This murderer killed nine men and women, more people than those who were killed in the Philadelphia murders and Bloody Sunday combined.
The central premise of Shelby County is that, while America was once consumed by the kind of “’pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” that can justify a fully operational Voting Rights Act, our nation has sufficiently fixed its racism problem that the full-formed act can no longer exist. “[T]hings have changed dramatically” in the 50 years since the Voting Rights Act became law, Roberts wrote. Moreover, he reasoned, the central provisions that he and his fellow conservative justices struck down in Shelby County were “extraordinary measures to address an extraordinary problem,” and they could no longer be justified now that that problem had grown merely ordinary.
It’s a sordid business, this divvying up the amount of racism in the United States to decide whether Congress is allowed to enact laws intended to fix it. Roberts’s premise, that there was less American racism in 2013 than there was in 1965, is undoubtedly correct. But that’s cold comfort to the families of the nine innocents killed in Charleston. It’s a fact that offers very little solace to James Bradfield, the partner of a black, gay man from Mississippi who was randomly targeted and killed by a band of white teenagers who, after a night of drinking, decided that it would be a good kind of early morning entertainment to “go fuck with some niggers.” It also offers little consolation for the voters in states like Texas, Mississippi, Alabama and North Carolina, who all moved forward with voter suppression laws shortly after Shelby County was handed down.
The Constitution does not give the Supreme Court the power to decide how much racism is enough racism to permit so-called “extraordinary” measures intended to correct it. To the contrary, the Constitution provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude” and that “Congress shall have power to enforce this article by appropriate legislation.” The Court obviously plays an important role in enforcing the Constitution’s protections against race discrimination, but Congress may make independent judgments about how to cure discrimination as well.
This constitutional judgment that Congress possesses robust powers to cure racial discrimination within the United States, however, has not deterred Roberts from second-guessing the legislature’s decisions. As soon as today, the Court could decide Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case which will determine whether a tool that has been used to uncover widespread housing discrimination may continue to exist.
In today’s America, housing discrimination remains widespread. A study conducted on behalf of the Department of Housing and Urban Development found that “black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than whites with similar credit qualifications and housing interests.” During the subprime lending boom, African American borrowers with good credit scores “were 3.5 times as likely as whites with good credit scores to receive higher-interest-rate loans, and Latinos were 3.1 times as likely to receive such loans.” And yet Roberts is widely expected to vote to strip the federal Fair Housing Act of much of its vibrance. As a young attorney in the Reagan administration, he worked on a memo that compared the kind of law at issue in Inclusive Communities to an unconstitutional “quota.” At oral arguments in the case, he made a number of statements indicating that he still holds the same view.