Justice  /  Comparison

The Supreme Court Is Headed Back to the 19th Century

The justices again appear poised to pursue a purely theoretical liberty at the expense of the lives of people of color.
Associated Press

With Anthony Kennedy’s retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an antidiscrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict. While the Roberts Court will never explicitly endorse a white man’s government in the way the Redemption Court did, in pursuit of other cherished ideological goals it will be asked to pave the road for a white man’s government by another name.

The justices of the Redemption Court “had a very limited and restricted view of racial justice. They lacked imagination, and because their view was so limited, they ended up destroying Reconstruction,” says Anderson Francois, the director of the Civil Rights Clinic at NYU. “In the travel-ban case, Roberts tries to pull the same stunt, pretending not to know or understand the social context in which Trump ran and which he has used to govern. The Trump administration, without exaggeration, is committed to maintaining some form of white supremacy and white control.”

In the short term, that means that in states where Republicans dominate the government, women and religious and ethnic minorities will find their rights further curtailed. Where it is necessary to restrict the electorate in order to maintain political dominance, Republicans will be able to do so without much interference. This will not be a simple matter of reasserting states’ rights. If the past is any guide, Republicans will find the lure of using federal power to impose their ideological goals on the blue states that choose to reject them difficult to resist, should they even attempt to resist it.

The Roberts Court need not be any more consistent than the Redemption Court. Where federalism meets its goals, it will employ federalism. Where the supremacy of the federal government must be invoked, it will invoke the supremacy of the federal government.