In its continuing drive to re-constitute the Confederacy by attempting to make racism a coherent political philosophy, the American conservative movement and its Supreme Court are preparing to gut Dr. Martin Luther King Jr’s. legal legacy over the next two years.
The Civil Rights Act, the Voting Rights Act, and the Civil Rights Act itself – the trinity of Dr. King’s legal legacy – will all be weakened and perhaps destroyed completely, thanks to a right-wing Supreme Court that’s been almost four decades in the making.
It all began with Ronald Reagan’s attorney general, Ed Meese, and a group of right-wing students and faculty at the Yale Law School in 1982. Meese took notice when they founded something called The Federalist Society, dedicated to a conservative and “originalist” reading of the Constitution. Since the original constitution was designed to uphold slavery, originalists have always had to dance around the issue of whether they were racists.
That fiction came to a head last year when Trump nominated the head lawyer for the Catholic Archdiocese of New Orleans for a federal judgeship. The lawyer, Wendy Vitter, got into hot water before the Senate Judiciary Committee when she refused to say whether Brown v Board of Education had been decided correctly.
Instead, she hemmed and hawed and gave the clear impression that her originalist interpretation of the Constitution led her to believe that mandated school segregation might not have been such a bad thing. That apparently was too much for even the GOP-controlled Senate, which refused to vote on her nomination, but the true beliefs of the originalist crowd that Republican presidents have packed into the nation’s courts had finally become clear.
It was part of the framework Meese and the Yale Federalists had in mind back in 1982, when they started identifying and vetting promising right-wing lawyers and judges who could be appointed to federal courts. Meese instituted previously unheard of conservative ideological tests for over 400 judicial appointments. But once the originalist gibberish was scrubbed off, the right-wing litmus test for federal judges came down to three things:
- Opposition to civil rights legislation of all kinds, and opposition to the principles of the 13th Amendment (ending slavery), the 14th Amendment (guaranteeing equal protection under the law), and the 15th Amendment (guaranteeing that the right to vote was given equally to all adult American citizens),
- Opposition to the 1973 Rowe v Wade decision legalizing abortion, and
- Opposition to the powers of the federal government to regulate business, from the Equal Employment Opportunity Commission and the Environmental Protection Agency to the Federal Trade Commission and the Federal Communications Commission.
Among the acolytes of the Meese-Reagan-Federalist Society movement was a young Harvard Law School graduate named John Roberts. Roberts came to Washington at the start of the Reagan administration to make his mark in the conservative judicial revolution that was just taking off. And the one piece of legislation he wanted to wipe out more than any other was the Voting Rights Act of 1965 (VRA).
Roberts put in his time as a foot soldier, researching and writing briefs that championed restricting, or even eliminating, the VRA. Fast forward almost a quarter-century to 2013, when Chief Justice John Roberts of the United States Supreme Court authored the majority opinion that eviscerated the VRA by declaring that nine states with a history of blatant voting discrimination no longer had to get federal government approval to change voting laws. A cascade of voter ID laws and other attempts at black voter suppression followed. Yet Robert wrote that racism in the United States is over: “disparities in voter registration and turnout due to race were erased, and African Americans attained office in record numbers.”
Now that bedrock legislation of the civil rights era has been reduced to a “racial entitlement,” and Donald Trump has two appointees on the Supreme Court, we should prepare for some of the worst decisions since Plessy v Ferguson legalized segregated schools and public facilities in 1896.
One way the Supreme Court could shred everything from the Fair Housing Act to the Civil Rights Act itself is to get rid of what’s called the “disparate impact standard.” In plain English, that standard says that laws don’t necessarily have to be racist in their intent if they produce a racist result. So, everything from zoning laws to the lending practices of banks and mortgage lenders can be changed if they end up being discriminatory, even if that wasn’t the law’s intent.
Say, for example, that a suburb outlaws multi-family housing. The suburb can always claim the intent of outlawing apartment buildings wasn’t racial at all, that residents merely wanted to preserve the ambience of having single-family homes. But if the law’s impact ends up being discriminatory by preventing lower-income people of color from accessing relatively affordable housing, then the disparate impact standard means the zoning law could conceivably be challenged under the Fair Housing Act.
By making enforcement of civil rights laws dependent upon intent, conservatives want to create a standard of proof so high that unless someone writes a memo specifically saying the law’s intent is to keep black people out, no sanctions or penalties will ever be levied, and civil rights enforcement will slowly shrivel and die.
The high court has already taken several steps down that road by upholding voter ID laws in several states, including Missouri. By hiding racist intent behind language concerned about “voter fraud” or “election integrity,” state officials have been able to legalize voter suppression with the approval of the Supreme Court.
More assaults like that are coming and, when they do, we need to ignore phony language about “original intent” or “government overreach.” An avowedly white nationalist administration and its five-vote majority on the Supreme Court have one simple goal: making it difficult, if not impossible, for blacks, Hispanics, women, gays, and others to pursue discrimination remedies through the federal courts.
Welcome back to the 19th century. And happy MLK Day.
Charles Jaco is a journalist, author, and activist. Follow him on Twitter at @charlesjaco1.