Chief Justice of the United States, John G. Roberts Jr. (AP Photo/Keith Srakocic)
The United States has always ridden a roller coaster of bitter division regarding the meaning and status of our civil rights. It is the best of times! It is the worst of times! One study among several shows that a majority of white Americans now feel that “any gains made by members of minority groups necessarily come at [our] own expense.” The implications of this unfortunate tension go well beyond racial politics, however; and during the month of June, a veritable arpeggio of Supreme Court holdings highlighted a perceptual chasm whose address will have to be the next leg of a civil rights movement embracing all Americans.
First, the Roberts Court has strongly endorsed a pre–civil rights era notion of states’ rights. In striking down the Defense of Marriage Act in United States v. Windsor, it deferred not only to the idea that states should be able to legislate as they please regarding marriage, but left open the possibility of discrimination against same-sex couples in the two-thirds of states that don’t recognize such unions. Combined with the Court’s hostility to the critical role of the interstate commerce clause in federal oversight of race and gender bias at the state level, such a stance potentially places quite a bit on the chopping block down the line.
In upholding the Affordable Care Act last year, Justice Roberts expressed his opinion that the commerce clause is not a proper foundation for enforcing anti-discrimination principles. If that dictum becomes the law of the land, then much of the last century’s equality jurisprudence will tumble, including the legal basis for Title IX, the Social Security Act, unemployment insurance benefits, Medicare, the National Labor Relations Act, the Occupational Safety and Health Act, the Clean Air Act, all federal disaster relief, the Anti-Trust Act, the Equal Pay Act and all jurisprudence related to public accommodation, including the Civil Rights Act of 1964.
Moreover, the Roberts majority is prone to an extreme ahistoricism. In Shelby County v. Holder, Roberts threw out the oversight provisions of the Voting Rights Act based on an apparent commitment to live entirely in the “present”—a present entirely disconnected from reality. Departing from precedent, the justices chose not to interpret the statutory history as about disenfranchisement broadly. Instead they read the act as addressing only the very same turnout and voter suppression rates as in 1965 and as prohibiting only the very same voter tests in use that same year.
While today’s seeming parity of black and white voter registration and turnout is good news indeed, it’s astonishing that the Court’s majority ignored contemporary struggles around voter ID and redistricting schemes aimed to dilute minority representation, not to mention the musical-chairs-style inaccessibility of polling places and permanent felony disenfranchisement. Indeed, Justice Ginsburg’s meticulous dissent in Shelby was a sobering encyclopedia of very recent, very well-substantiated assaults on minority franchise throughout the covered states.