Courts

Supreme Court Attempts To Lock-In Minority White Rule

By ruling political gerrymandering non-justiciable, the Court creates a way forward for the coming white minority.

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(Photo by Mark Wilson/Getty Images)

In the long arc of history, when an insular racial minority seeks to rule unchallenged over a larger racial majority, the polity devolves into unrest and war. That’s the lesson of colonialism, that’s the lesson of Rwanda. Racial minorities cannot indefinitely wield political and legal power without giving the larger population a fair chance at representation and legal protections. A political system is not high school, it cannot indefinitely survive in a state where the few people who wear the right jersey dominate over the many who wear different colors.

A polity can’t survive that way in the long term, at least. In the short-to-intermediate term, it can survive just fine. It is that short-term thinking that animates not just Chief Justice John Roberts and the rest of the conservatives on the Supreme Court, it’s also what animates Donald Trump and his legion of white supremacist supporters. Left unchallenged and unrevoked, Roberts’s decision today in Runcho v. Common Cause (a consolidated case looking at political gerrymandering in North Carolina and Maryland) will lead to violence. It will lead to violence just as surely as Dred Scott v. Sanford, decided in 1857, led to the outbreak of violence in 1860.

But the timing will be more forgiving than in Dred Scott, and Roberts likely theorizes he’ll be dead or overturned before the hot war he here invites convulses the country.

The problem Roberts (specifically) and white people (generally) face is that they are losing their numeric majority in this country. Most people now living will live to see America become a majority minority country. That demographic reality scares the crap out of some white people, mainly the ones who vote Republican. That white people are frightened is an empirical fact. Why they’re frightened is up for some debate. My view, for what it’s worth, is that white people have a habit of projecting their worst instincts onto everybody else. It’s hard for them to imagine being nonwhite, so they imagine that all nonwhite people would act like them, given the slightest chance. Sometimes that makes them think that we all secretly want to be like or marry Becky. In this context it makes them think that nonwhites won’t be coming for reparations, we’ll be coming for retribution.

It’s an irrational and unfounded fear, but the white people I’m talking about don’t listen to me no way. They’re afraid and they’re not about to take their diminished numerical status lying down. So they proceed to defend themselves from this browning threat in two ways.

One is the Trump way. It’s best embodied by the brutal ethnic cleansing he has set this country upon. Of course his white supporters are excited to see the Trump administration brutalize children; it’s the children’s fault, to their mind, that white people might not be numerically decisive anymore.

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But that’s the stupid way. You can’t deport or kill enough brown people to make the white numbers hold up, unless you are willing to industrialize the terror. Thankfully, as of now, there just aren’t enough white people who are willing to go along with that.

So, as a backup for when Trump’s pogroms fail, we have the second way. That’s the Federalist Society’s way. The goal of the Federalist Society is not to exclude nonwhite people from the country — I mean, they’ll go along with that but they know that’s not really sufficient — it’s to limit the legal and political power of nonwhite people, so that even with a numerical advantage they can’t wield significant power. Thanks to Mitch McConnell, and the vestigial Electoral College bestowed upon us by earlier white supremacist rulers, that way has been far more successful than all of the terror tactics Trump and Steve Bannon and Stephen Miller have been able to dream up.

It is in that context, the protection of white rule even as a minority population, that we must understand John Roberts’s decision in the gerrymandering case. On its face, his ruling is a Kafkaesque nightmare that would appear merely misguided or ignorant. Roberts holds that political gerrymanders are non-justicible political questions. Instead, he thinks the political branches must decide how much gerrymandering is “too much.” The obvious problem with that is if the political process producers a gerrymander that is wholly unfair to one side or the other, than there is no political way to redress the situation. As Agent Smith might say: “What good is a phone call, when you are unable to speak, because I’ve changed the code and mapped your voice out of existence?”

Roberts’s decision is that his court and NO court can even weigh in on whether a “political” gerrymander is unconstitutional, which is actually worse than ruling that the political gerrymanders in front of him were constitutional. It makes literally every gerrymander that can be successfully argued as “political” not only legal, but unreviewable. That’s what makes it so dangerous. It’s one thing to say that “you have no rights to your vote in this case,” but Roberts is saying, “you have no rights to your vote if it’s gerrymandered away.” When you are being oppressed, and when you can’t even appeal to a higher authority, that’s when fights break out.

Roberts must know that his result is trash, so we have to look at the reason for that result. And as he explains it in his majority opinion, you can see the fear of minority status:

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Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system—“statewide elections for representatives along party lines.” Bandemer, 478 U. S., at 159 (opinion of O’Connor, J.).

Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Ibid. “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id., at 130 (plurality opinion). See Mobile v. Bolden, 446 U. S. 55, 75–76 (1980) (plurality opinion) (“The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.”).

You see it, right? The sneer at the “instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence.” It sounds like he’s writing a defense of majoritarian rights, but he’s not. Gerrymandering is not about the protection of majoritarian rights, it’s about the promotion of minority interests over and above what would be achieved from math-based geometry. As white people lose their numerical grip on the country, it will be these gerrymanders, the one Roberts refuses to let courts review, that will be the basis of white control in various states and in Congress, while the anachronistic “compromise” of two senators per state will do the work in the Senate and in presidential elections.

You can also see Roberts’s ultimate intent by which kind of gerrymandering he still wants the courts to be able to strike down. Political gerrymanders are unjusticiable, according to Roberts, but “racial” gerrymanders are not:

Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification.

Well, that’s one way of putting it. Of course Mr. “Stop discriminating on the basis of race” Roberts here thinks that the goal of reviewing racial gerrymanders is the “elimination of racial classification.” But, ANOTHER way of looking at “racial” gerrymandering is: trying to ensure non-white representation in Congress when the white majority would rather you not have it. See, racial gerrymanders can be good, from the perspective of representation, or can be bad. You have to REVIEW IT to know. And Roberts is all here for that kind of review, because striking down gerrymanders that ensure black or Latino people have an opportunity to choose their own representatives is something that Roberts (and Clarence Thomas) desperately want to strike down.

The way Roberts has it set up, if Democrats want to make sure there are some districts where nonwhite representatives are likely to get elected, he can strike it down as an illegal “racial” gerrymander. But if Republicans want to move people around so that no nonwhite people are likely to be elected, no court can review it because it’s a “political” gerrymander.

And, that is exactly the way you’d set it up if your ultimate goal was to preserve white supremacy even in the face of minority status.

His plan will work, for a time, until it doesn’t. But one day, there will be a majority nonwhite population which is sick of being subjected to the rule of the white minority without fair representation. And when that day comes, y’all better hope that nonwhite people don’t act like white Americans have acted in the past when faced with taxation without representation.

Runcho v. Common Cause [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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