How the U.S. Supreme Court legalizes racism

The Supreme Court’s recent decision in Alexander v. South Carolina NAACP has been widely critiqued because it allows the state to create a voting district gerrymandered on the basis of race. The most heinous part of the decision, however, is not that it allows one such district to exist, but that it dooms to failure any future efforts to forestall race-based gerrymanders. It does this by reinforcing a rule of evidence that has led the court, over several decades and in numerous cases, to legalize racism.

The Alexander decision concerns South Carolina’s first congressional district. To ensure Republican representation, the state Legislature redrew the district’s map. They acknowledged their goal was to gain partisan advantage (a type of gerrymander that previous Supreme Court rulings, unfortunately, have allowed) but denied race was a factor in selecting where to draw the district’s boundaries.

The result, nonetheless, was a district that contained thousands more white people and thousands fewer Black people. As Justice Kagan stated in her dissent, “More than 60% of Black Charleston County residents previously in District 1 were relocated to District 6. Of the 11 precincts with the largest Black populations, 10 were gone.” The district court declared the map unconstitutional, but the Supreme Court found the gerrymander to be partisan, not racial, and thus reversed that decision.

However wrong-headed one might find this reversal, the deeper problem is in its rationale. Justice Alito’s majority opinion asserts: “we start with a presumption that the legislature acted in good faith” and to refute that presumption requires, in almost any case, “a relevant state actor’s express acknowledgment that race played a role in the drawing of district lines.” 

Even if evidence points to race-based manipulation of a district, absent such “express acknowledgment” the legislature enjoys the benefit of the doubt. “When confronted with evidence that could plausibly support multiple conclusions” Alito writes, a court must “draw the inference that cuts in the legislature’s favor.” The majority opinion requires the court to accept the state’s case unless a state representative has admitted they acted with racist intent.

No one, of course, will confess to such a motivation. It thus becomes nearly impossible to demonstrate a race-based gerrymander. All a state body needs to do to refute the charge is say “we didn’t do it. It was partisan, not racial.”

Which is exactly what happened in this case. The state acknowledged the new map created “tremendous disparity” that broke down along racial lines, but claimed the racial skew was an unintended consequence of its partisan goal. Alito’s ruling endorses this justification: “a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map. [And] if either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.” The state needed only to show a partisan explanation was possible (not even probable) to successfully refute the plaintiff’s case.

Once admission of racist intent is required to demonstrate violation of the constitution’s equal protection clause, bad actors are free to disenfranchise Black citizens. They can get away with it by citing race-neutral reasons to justify the unfair conditions they have created.

This practice is not new. Richard Rothstein, in “The Color of Law,” his excellent book about racial segregation in housing, examines how zoning laws shunted Black people into neighborhoods contaminated by toxic waste facilities. He concludes, “For the most part, courts have refused to reject toxic siting [zoning] decisions without proof of explicit, stated intent to harm African Americans because of their race.”

Michelle Alexander, in “The New Jim Crow,” cites examples of Supreme Court decisions based on the requirement of stated racist intent. In McCleskey v. Kemp, a 1987 case about racism in criminal sentencing, the court ruled that “bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the 14th Amendment in the absence of clear evidence of conscious, discriminatory intent.” In United States v. Armstrong, a 1996 case about differential treatment of Black and white defendants who had committed similar crimes, the opinion conveyed that “unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision-making.”

Prosecutorial misconduct in jury selection was central to Purkett v. Elem in 1995, in which the court ruled any race-neutral reason was sufficient justification to strike a potential juror. A lower court had ruled against a prosecutor who struck one Black juror because “he had the longest hair of anybody on the panel,” and another because “he had a mustache and goatee type beard.” The Supreme Court’s reversal of the lower court held that “unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Justice Stevens’ dissent bemoaned the majority’s “surprising announcement that any neutral explanation, no matter how ‘implausible or fantastic,’ even if it is ‘silly or superstitious,’ is sufficient to rebut a prima facie case of discrimination.”

The Supreme Court has rendered numerous decisions based on the rule of evidence central to its majority opinion in Alexander v. South Carolina NAACP: to demonstrate racial bias requires admission of racist intent. Without that admission, any race-neutral explanation will suffice.

Since one needs minimal ingenuity to disguise intent, this rule requires the court to turn a blind eye to most cases of racist motivation. But more importantly, it requires the court to sanction actions and policies that, even in the absence of racist motivation, discriminate against minority populations. Like many Americans, the court finds racism in individual bigots, but not in policies that segregate Black homeowners or incarcerate Black citizens or, most recently, disenfranchise Black voters.

Jeffery L. Bineham is an emeritus professor in the Judy C. Pearson Department of Communication Studies at St. Cloud State University.

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