Neither the Roberts court nor the Reconstruction-era court was blind to the democratic decay and inequality that its disastrous decisions unleashed. Both courts, in the 1870s and the 2010s, were eager to declare victory over racism and end new federal protections of the vote in the name of a color-blind society only they could see. In this benighted parody of actual historically informed moral reasoning, one simply had no need to safeguard anyone’s rights in an allegedly harmonious and color-blind social order.
The parallels continue. Justices on both courts viewed protecting the right to vote as a racial entitlement that gave undue preference to Black citizens. Both courts disingenuously encouraged citizens to win change in state legislatures and sent them back unprotected to engage with an electoral process that the same courts debased and rigged to benefit the white supremacist status quo. And the consequences of both courts’ decisions were visible immediately—yet neither one backed down or changed course. It’s almost as if these were the outcomes they desired.
Taken together, the Reconstruction Court’s disgraceful and obviously disastrous decisions licensed violence against Blacks and created decades of white minority rule. It did not require a crystal ball to understand that southern state legislatures, given an end-around the federal Constitution, would take it, no matter how deadly or vicious the results might be. Cruikshank abandoned Black citizens to the Klan, and the Reconstruction-era civil-rights cases green-lit new state constitutions across the South that enshrined white supremacy and overrode the Reconstruction Amendments with poll taxes, literacy tests, and other barriers to the ballot box. With Court-sanctioned threats and intimidation keeping Black voters from the polls, Louisiana’s white legislature—in a Black majority state—passed a new court-sanctioned constitution in 1898 that made it so difficult for Blacks to vote that the number of registered Blacks dropped immediately from 130,000 in 1897 to fewer than 5,000 by 1900.
Likewise, the Roberts Court’s treatment of democracy, leaving it to states where the largest growth industry seems to be manufacturing new “race-neutral” laws that still keep Black and Latino voters from the ballot box, uses the vague doctrines of federalism as a cover for the new Jim Crow. In his 2013 opinion in Shelby, Roberts created an entirely new and extra-constitutional doctrine of “equal sovereignty” among the states as he ended the practice of “preclearance” under the Voting Rights Act—the process by which those states with the worst history of racial prejudice in voting laws had to win federal approval before making any changes to election policies and procedures. Roberts cherry-picked his data points, noted the nation had elected its first Black president, and with barely any pretense to consult historical and next-generation patterns of voter suppression, insisted that “things have changed dramatically” in the South.