The Racism Of Chief Justice John Roberts Is About To Be Fully Unleashed

People talking about a 'centrist,' 'incremental' Roberts must not know any racial minorities.

People need to back up out of my face with this “Chief Justice John Roberts is an institutionalist who will retard the slide into fascism” arguments. That is a bad take, and one that you can only formulate if your primary concern is with the lives of white males.

I will concede the point that if you are a white male, your privileged little life will not change all that much. If I sound “hysterical” to you, it’s because nobody is coming to curtail your right to vote. Nobody is coming to reduce you to the condition of a talking incubator. Nobody thinks your skin color constitutes probable cause for you to be shot to death.

When it comes to white people, Roberts has shown himself to be an incrementalist who favors narrow readings and subtle change. But when it comes to minorities, Roberts has consistently shown himself to be a deep racist — albeit one who draws less attention than his cross-burning brethren. His trick — which works only on white people, but works effectively on white people — is to couch his racism as a plea for color-blindness. For people who have no color, blindness can seem like a virtue as opposed to a disability.

Take his most famous line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It is a perfect piece of circular tripe. But it’s the kind of tripe that some white men go in for. It’s comforting, to men like Roberts, to think that all one has to do to overcome this country’s legacy of enslavement and oppression is to just… stop. And it’s alt-right cannon that it is minorities, what with their consistent “focus” on how the color of their skin denies them opportunities, who are the ones that are really holding themselves back by constantly bringing up race. Roberts could have said that line at the head of mob in Charlottesville, and all the little Tiki-Torches would have waved their approval.

But do you remember the actual context of the line? He wrote it in his opinion in Parents Involved in Community Schools v. Seattle School District No. 1. The PICS case was about a Seattle desegregation program. Roberts ruled that the program wasn’t narrowly tailored enough to survive. The only mollifying influence was Kennedy, who wrote separately agreeing with Roberts on some points, but agreeing with the liberals on others. Roberts was willing to throw out Seattle’s entire desegregation program, because in his world “the way to stop discriminating on the basis of race” means that we have to stop making black kids GO TO SCHOOL with white children.

Roberts’s famous quote is the thin edge of the wedge he uses shove minorities back down into the mud.

The fat end is, obviously, Shelby County v. Holder. There, the allegedly incrementalist, allegedly institutionalist Roberts gutted Section 5 of the Voting Rights Act, ruling that Southern states no longer needed to get preclearance before changing their voting districts to disenfranchise minority voters. The “institutionalist,” “incrementalist” ruling overturned 40 years of settled law, and overlooked the fact that Congress actively voted for the preclearance plan as recently as 2006.

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For Roberts, none of this mattered. He decided, by fiat, that racism was not as big of a problem in the South as it used to be.

It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach, supra, at 308 (“The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”).

But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.

This, again, is one of the more common of the white man’s tricks. They take something that has been effective at ameliorating the effects of racism, declare victory over racism, and then remove the very thing that was fixing it. Every time a black man buys a Cadillac, some white man is there to hang a Mission Accomplished banner on his ass and claim “driving while black” has been defeated.

Again, it’s effective and people who claim Roberts is about gradual change aren’t looking at his ferocious commitment to “ending racism” by wholly ignoring it. Since Shelby County, Roberts has consistently voted against any minority plaintiff trying to exercise their voting rights in the face of disenfranchisement through gerrymandering.

But the most disgusting manifestation of Roberts’s racial instincts showed itself in the travel ban case. In Trump v. Hawaii, Roberts willfully ignored the objective bigotry that the President of the United States PROMISED to authorize.

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Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

The way to stop discriminating on the basis of race is to ignore it when white people discriminate on the basis of race.

Chief Justice John Roberts is an enemy of minorities. He’s bad on women and isn’t going to be a friend to the LGBT community.

This narrative that Roberts will be some kind of mainstream conservative only holds up if you’re used to being a “default” person. A person who Roberts sees as a potential equal.

If you looked like me, you’d see Roberts for what he is. Roberts might think that we should all be color blind, but I can see his white ass coming from a mile away.

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.