\n\n“As the Court\u2019s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy.<\/p>\n\n\n\n
One justice took umbrage with that invocation of racism: Justice Samuel Alito. His dissent was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers\u2019 decisions today, and that the legacy of past racism still affects people of color.In the most noteworthy of those opinions, 2018\u2019s Abbott v. Perez<\/em><\/a>, Alito convinced a majority of his colleagues to write such a strong presumption of white racial innocence<\/a> into the law governing racial voter discrimination that it is now virtually impossible for voting rights plaintiffs to prove that state lawmakers acted with racist intent.<\/p>\n\n\n\n Alito does not appear driven by broad skepticism of racial issues. While he has repeatedly lashed out at the mere suggestion that white policymakers may have been motivated by racism, he took a drastically different tone in Ricci v. DeStefano<\/em><\/a>(2009). In that case, Alito wrote a lengthy concurring opinion suggesting that a cohort of mostly white firefighters were denied promotions due to a conspiracy between New Haven Mayor John DeStefano and a local black preacher.<\/p>\n\n\n\n In other words, when black or brown people have been on the receiving end of allegedly racist treatment, Alito preaches that we shouldn\u2019t jump to such conclusions; yet in a case where white people were allegedly harmed, he wasn\u2019t so cautious.<\/p>\n\n\n\n With his Ramos<\/em> opinion, Alito continues to build a distinctive profile as a jurist: He has emerged as the Court\u2019s foremost defender of white racial innocence.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Gorsuch offered a brief history of how the practice of allowing non-unanimous juries to decide a defendant\u2019s fate is rooted in white supremacy. The delegates who drafted Louisiana\u2019s 1898 constitution, Gorsuch argues, \u201csought to undermine African-American participation on juries\u201d by allowing juries to resolve cases in a 10 to 2 verdict (the idea was that only a small number of black jurors were likely to serve on the jury in the first place).<\/p>\n\n\n\n Gorsuch also argues that Oregon\u2019s use of non-unanimous juries \u201ccan be similarly traced to the rise of the Ku Klux Klan and efforts to dilute \u2018the influence of racial, ethnic, and religious minorities on Oregon juries.\u2019<\/p>\n\n\n\n Gorsuch\u2019s decision to invoke this dark history produced a livid response from Alito. \u201cTo add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts,\u201d Alito writes in the introduction to his dissent. He adds that \u201ctoo much public discourse today is sullied by ad hominem<\/em> rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument\u2019s proponents,\u201d and accuses the majority of his colleagues of engaging in such rhetoric. Alito goes on to make a fair point. Though Louisiana and Oregon may have originally permitted non-unanimous jury verdicts to advance white supremacy, \u201cboth States readopted their rules under different circumstances in later years.\u201d Louisiana, for example, originally provided for non-unanimous juries at an 1898 constitutional convention dominated by white supremacists. But the state \u201cadopted a new, narrower rule\u201d at a new constitutional convention in 1974.” …<\/p>\n\n\n\n “Alito\u2019s Ramos<\/em> dissent also fits into a broader pattern. In multiple cases, including cases where there is clear evidence that modern-day lawmakers acted with invidious racial intentions, Alito treats the mere suggestion that anti-black or anti-brown racism may still play a role in policymaking with contempt.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Chief Justice John Roberts. Roberts\u2019s race opinions are animated by his belief that any legal acknowledgment of race is odious, regardless of whether the purpose of a race-conscious law is to foster white supremacy or to tear it down. \u201cThe way to stop discrimination on the basis of race is to stop discriminating on the basis of race,\u201d Roberts famously wrote in an opinion arguing that two race-conscious plans to desegregate public schools were unconstitutional<\/a>.<\/p>\n\n\n\n Roberts\u2019s form of color-blindness is often actively hostile to civil rights laws. Hence his decision in that school segregation case, and his later decision in Shelby County v. Holder<\/em><\/a>(2013), which struck down much of the Voting Rights Act.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “yet, there is daylight between Roberts and Alito. Though Roberts joined Alito\u2019s opinion in Ramos<\/em>, he did not join Alito\u2019s Ricci <\/em>concurrence.<\/p>\n\n\n\n nd Roberts broke rather sharply with Alito in a recent dispute about whether the Trump administration could add a question to the 2020 census form that would have discouraged many immigrants from participating in the census. Department of Commerce v. New York<\/em><\/a> (2019) involved the Trump administration\u2019s attempt to add a question to the 2020 census form asking whether each respondent is a US citizen.<\/p>\n\n\n\n The idea of adding a citizenship question to the main census form is opposed by prominent census experts in both parties.As top Census officials from the Reagan and Bush I administration warned, adding such a question \u201ccould seriously jeopardize the accuracy of the census<\/a>,\u201d because \u201cpeople who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.\u201d<\/p>\n\n\n\n The Trump administration made the implausible claim that it added this question to help enforce the Voting Rights Act \u2014 a statute this administration has shown little interest in enforcing<\/a>. But, while the New York<\/em> case was pending before the Supreme Court, leaked documents revealed that the administration may have had a very different motive. Alate Republican strategist, Thomas Hofeller, who urged the Trump administration to include a citizenship question on the 2020 Census form, had determined that such a question would \u201dclearly be a disadvantage to the Democrats<\/a>\u201d and \u201cadvantageous to Republicans and Non-Hispanic Whites.\u201d<\/p>\n\n\n\n In any event, a 5-4 Supreme Court struck down the citizenship question<\/a>, with Roberts coming very close to accusing the Trump administration of lying. The claim that a citizenship question was needed to enforce the Voting Right Act, Roberts concluded, \u201crested on a pretextual basis.\u201d<\/p>\n\n\n\n Alito began his dissent with characteristic anger at the idea that anyone would dare accuse the Trump administration of racism. In a preview of the sort of rhetoric he later deployed in his Ramos<\/em> dissent, Alito wrote that \u201cit is a sign of our timethat the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today\u2019s regrettable decision\u201d in the opening paragraph of his New York<\/em> dissent. For Alito, it was fundamentally wrong to attack \u201cthe decision to place such a question on the 2020 census questionnaire … as racist.\u201d<\/p>\n\n\n\n No other justice joined Alito\u2019s dissent.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “The greatest triumph of Alito\u2019s efforts to write white innocence into the law came in Abbott v. Perez<\/em><\/a>, where Alito wrote the majority opinion.”<\/p>\n\n\n\n …<\/p>\n\n\n\n ” In 2011, Texas\u2019s Republican-controlled legislature drew congressional maps that, as a federal court eventually determined, included some districts that were illegally racially gerrymandered. These maps never took effect, in large part because a different federal court determined that they violated the Voting Rights Act. <\/p>\n\n\n\n That left Texas in a bind. In early 2012, the state still had no lawful maps that it could use in its upcoming congressional elections, and the state\u2019s primaries for these congressional races were just a few months away.<\/p>\n\n\n\n As a stopgap measure, a federal court in Texas drew interim maps that the state could use in its 2012 elections. Many of the districts in these hastily drawn interim maps closely resembled the racially gerrymandered districts drawn by the Texas legislature in 2011. The court, moreover, emphasized that \u201cthis interim map is not a final ruling on the merits of any claims\u201d that some parts of the map were illegal racial gerrymanders.<\/p>\n\n\n\n The court, in other words, would allow Texas to use imperfect maps for one election only, given the risk that Texas would not be able to hold an election otherwise. But the court was also equally clear that it might strike down some of the state\u2019s racially gerrymandered districts at a later date.<\/p>\n\n\n\n Nevertheless, in 2013, the Texas legislature passed a new law ratifying these interim maps as its own \u2014 including the districts that were still being challenged as racial gerrymanders. And Alito\u2019s Perez<\/em> opinion held that this new law reenacting the racial gerrymanders should be upheld.<\/p>\n\n\n\n \u201cThe primary question\u201d in Perez<\/em>, according to Alito, \u201cis whether the Texas court erred when it required the State to show that the 2013 Legislature somehow purged the \u2018taint\u2019 that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.\u201d<\/p>\n\n\n\n According to Alito, courts must apply a strong presumption that lawmakers did not act with racist intent \u2014 even under the unusual facts that existed in the Perez<\/em> case. \u201cWhenever a challenger claims that a state law was enacted with discriminatory intent,\u201d Alito wrote, \u201cthe burden of proof lies with the challenger, not the State.\u201d<\/p>\n\n\n\n Having laid out this standard, Alito then swiftly absolved the Texas legislature of any racial guilt. \u201cThe only direct evidence brought to our attention suggests that the 2013 Legislature\u2019s intent was legitimate,\u201d Alito wrote in Perez<\/em>. \u201cIt wanted to bring the litigation about the State\u2019s districting plans to an end as expeditiously as possible.\u201d<\/p>\n\n\n\n Alito\u2019s argument, in other words, is that the 2013 maps weren\u2019t enacted to preserve a racial gerrymander; they were enacted to shut down litigation challenging a racial gerrymander. And this distinction is sufficient to cleanse the state legislature of any allegation of racism.<\/p>\n\n\n\n
<\/p>\n\n\n\n
<\/p>\n\n\n\n