The US Supreme Court disagrees on what racism is

According to the Supreme Court, it's perfectly effective for state legislatures to attract districts based on party affiliation – they simply can't gerrymander the districts based on race. But this simple-sounding rule poses a serious practical problem when there's a high correlation between being black and being democratically elected. The court's conservative majority, in a 6-3 decision last week, made it significantly harder for plaintiffs to prove that the districts were gerrymandered based on race quite than party affiliation.

The case of Alexander v. South Carolina State Conference of the NAACP is a vivid example of the conflict between two competing theories about how we must always take into consideration racism in America today.

The decisions and dissents are somewhat technical. Justice Samuel Alito wrote the bulk opinion, which was joined by all the court's conservatives. Alito argues that courts should assume that legislatures are acting in “good faith.” In other words, faced with gerrymandering in a spot like South Carolina, where a minimum of 90% of black voters vote Democrat, we must always not assume that race was the motivating factor for the state's Republican-dominated legislature. To persuade the court otherwise, plaintiffs should compare the disputed map to an “alternate map” of a district that was gerrymandered purely for partisan, but not racial, reasons. In the absence of such an alternate map, Alito wrote, the court should conclude that partisanship, not race, was the underlying motive—which makes the district constitutional.

Justice Elena Kagan, joined by two other liberals on the court, sharply criticized the great faith presumption and the alternate map requirement in her dissent. Her argument was that Supreme Court jurisprudence requires justices to just accept district court decisions on gerrymandering unless those lower court decisions are clearly erroneous. The majority, she stressed, violated that principle by imposing the great faith presumption and the alternate map requirement.

Dangers of “good faith”

So much for the law: What's behind this doctrine? The answer is a deep disagreement between the 2 factions of the Court on racism. Alito and the conservatives consider that the Constitution should protect blacks only from essentially the most virulent type of bigotry – the sort that led South Carolina to support slavery until it lost the Civil War and racial segregation until the civil rights movement produced the Voting Rights Act of 1965.

Moreover, they consider that such overt racism has now virtually disappeared. The judicial presumption of excellent faith is implicitly based on the belief that the white Republicans in South Carolina who gerrymandered the district only want Republicans to be elected to Congress and that they’d not care if those Republicans happened to be black. In other words, the Court's conservatives assume that the South Carolina legislature blames South Carolina's black residents because they’re Democrats, not because they’re black.

Kagan and the court's other liberals see things in a different way. First, they don't agree that overt racism is dead. So a presumption of excellent faith is premature, to say the least. The law shouldn't be manipulated to make it harder to prove racism than different kinds of legal claims.

Second, the court's liberals implicitly consider that racism today should be greater than just personal bigotry. The core idea of ​​structural or systemic racism is that even when we could all sooner or later miraculously get up freed from all prejudice, the structures of racial drawback built over lots of of years of slavery and segregation would still be in place. And blacks would still be more likely, on average, to live in places shaped by that history, as is the case in South Carolina. According to this line of considering, the proven fact that Republicans in South Carolina can manipulate blacks right into a constituency to limit Democratic influence is just not a neutral and even purely partisan act.

Court reflects country

On a more fundamental level, the disagreement within the court reflects a disagreement within the country about race and racism. In that respect, this case is comparable to last 12 months's vital decision on affirmative motion in college admissions. We can expect more of the identical within the years to return.

Noah Feldman is a columnist for Bloomberg. ©2024 Bloomberg. Distributed by Tribune Content Agency.

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