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Colorblind Constitution: The Roberts court ends a ‘sordid business’

The Supreme Court’s decision in Louisiana v. Callais, which outlawed racial gerrymandering, is being feigned by many on the left, despite most of us predicting that outcome was likely.

Names like Rep. Jamie Raskin (D-Md.) declared Although the court was said to have been “redirected” to rig the upcoming election, this decision is actually the result of decades of precedent by various justices, most notably Chief Justice John Roberts.

Indeed, this decision will strengthen the Roberts Court’s legacy in steering the country toward a colorblind legal system.

Like most Americans, Roberts abhors all forms of racial discrimination. He has the interesting idea that this is what the drafters of the 14th Amendment meant when they banned discrimination based on race. That’s why Roberts in 2006 famously wrote“Dividing us by race is a disgusting business.”

Roberts sees no difference between this type of discrimination in favor of one race. This is all abominable business, and he has written influential arguments for decades for the court to abandon its contradictory and hypocritical approach to racial discrimination.

The Court had a hard time rationalizing using race to discriminate when it served a higher purpose, such as greater equality or affirmative action. Some of these views were constitutionally incomprehensible.

For example, in 2003 Grutter and Bollingercase, the court was divided five to four on whether to uphold racial admissions criteria used to ensure “diversity” in a classroom at the University of Michigan Law School. But in the majority opinion, Justice Sandra Day O’Connor stated that she “expected that 25 years from now, the use of racial preferences to advance the interests affirmed today will no longer be necessary.”

Few of us would have realized that O’Connor had found some kind of expiration date on the racial criteria permitted in the Constitution.

But some justices throughout this period remained adamant that there was a hard line rule against such racial criteria. That includes Justice Samuel Alito, author of the court’s Callais decision, and Roberts, who put it succinctly in 2007: “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

It is possible to strongly disagree with this comment and the low tolerance for racial criteria. But this had nothing to do with the midterm elections. It is the result of dozens of thoughts formed up to this point.

From college admissions to gerrymandering, the court has created the bright line that figures like Roberts have long sought. In doing so, they brought this country closer to colorblind jurisprudence than at any other time in our history.

Biden administration found over and over again that it violated the Constitution by racially discriminating in federal programs. Democratic leaders have combated this trend and vowed to reverse these decisions. Some are even demanding that Democrats pack the Court with a liberal majority once they are back in power.

Last year, the Supreme Court unanimously ruled in Ames v. Ohio Department of Youth Services that whites cannot incur additional liability when filing discrimination lawsuits.

Most coverage of the Callais decision is long on rhetoric and short on substance. The Court did not “eviscerate” the Voting Rights Act. It also did not repeal Article 2 of the law. Instead, the court held that neither the law nor the Constitution gave legislators the authority to manipulate districts to effectively guarantee the race of elected representatives (any race).

For decades, courts have faced endless litigation over district structures designed to elect minority representatives. It is a system that gives advantages to candidates based solely on their race. The court ruled that this type of racist gerrymandering was illegal. The Voting Rights Act will now be read to prevent intentional racial discrimination. Courts will continue to block districts designed to “give minority voters fewer opportunities because of their race.”

This does not mean that racial discrimination has been eliminated in our nation or that we do not need to devote ourselves entirely to its elimination. The stain of slavery and segregation remains with us, as does the ongoing scourge of racial prejudice. African Americans and other minorities still face unfair discrimination that cannot be tolerated in our system. We still have a lot of work to do.

In the area of voting rights, courts have struck down and will continue to strike down any rules designed to suppress or inhibit minority voters.

Despite this ongoing struggle with racism, there are reasons to be hopeful. As the Rev. Martin Luther King put it, “The arc of the moral universe is long, but it bends toward justice.” People of color are now powerful players in American politics. Within two decades, white voters are expected to become a minority in this country.

We have now elected a black president and a black vice president. Minority Leader Hakeem Jeffries (who declared the Court “illegitimate” after Callais’ opinion) stands to become the next Speaker of the House.

This progress was an uphill battle, and both the Voting Rights Act and the Civil Rights Act played important roles in achieving greater racial diversity in our society.

The Callais decision is part of this progress. We are moving into a new era in which racial criteria and discrimination are neither rationalized nor tolerated. There is now reason to hope that we will truly put an end to “this disgusting business that divides us by race.”

Jonathan Turley is a law professor and New York Times bestselling author of:Rage and the Republic: The Unfinished Story of the American Revolution.“

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