With South Carolina Ruling, Alito May as Well Fly a Confederate Flag

Only a few days after Samuel Alito was revealed to have flown pro-coup flags over his two homes, he authored an opinion for the U.S. Supreme Court which makes it all but impossible to challenge racial gerrymandering. According to Alito, state legislatures are presumed to be “acting in good faith” when they move thousands of black voters out of a voting district to ensure more Republican representation.

In the old Jim Crow days, Southern states used violent intimidation and techniques like poll taxes, literacy tests, and even lynching to deny black people the vote. Today, following Alito’s opinion, they can simply gerrymander black voters so their votes just don’t matter. Alito goes a long way towards rendering the post-civil war 13th, 14th, and 15th Reconstruction Amendments, as well as the Civil Rights laws of the 1960’s, null and void.

Alito and his Republican colleagues are effectively overturning not only the Reconstruction Amendments but the purpose of the Civil War, as articulated by President Lincoln in the Gettysburg Address

I’m reluctant to use bombastic rhetoric to comment on the Supreme Court, but it’s not a stretch to say that Alito’s opinion (joined by the five other Republican members of the Court) constitutes White Supremacy. AsThe Wall Street Journal headline about the case proclaims, “High Court Restores White Majority Distrcit.” As columnist Elie Mystal points out in The Nation, it’s appropriate that Alito hang pro-'Stop the Steal' flags since he considers only white votes legitimate and Trump won a majority of white voters.

In the instant case, Alexander v. South Carolina State Conference of the NAACP, the Republican-controlled legislature moved about 30,000 black voters (who voted 90% Democratic in 2020) out of Charleston’s First District, to insure the election of conservative white Republican Nancy Mace to Congress. The Federal District Court had made the factual and legal determination that this was an unconstitutional racial gerrymander. Alito’s opinion restored the Republicans’ gerrymander, overturning the lower court’s factual finding and declaring that that the plaintiffs had not proven that this was a racial gerrymander (still theoretically illegal) and not a partisan political gerrymander, which the decision declared to be perfectly constitutional.

Alito’s opinion was pernicious for two reasons: First, it expanded the right of state legislatures to intentionally gerrymander their voting districts to ensure that the majority party in the state legislature could pick their own voters. Under SCOTUS’s wrongly decided 2019 decision in Rucho v. Common Clause, the Court's then five-Justice Republican majority held that while partisan gerrymandering may be unconstitutional, there are no standards by which Federal Courts may determine whether or not a gerrymander is partisan and therefore Federal Courts lack jurisdiction to rule on partisan gerrymandering. SCOTUS still left open the possibility of Federal Courts finding that unconstitutional racial gerrymandering had occurred, which the lower found to have happened.

Alito’s Alexander opinion greatly expanded Rucho. Rather than just saying that partisan gerrymandering cases are non-judiciable in Federal Courts, it affirmatively finds partisan gerrymandering to be fully constitutional, writing at the very beginning of his opinion that “as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”

Now, per Alito and his five other Republican colleagues, a state legislature may openly proclaim that the purpose of its gerrymandering is to ensure that its majority party (usually Republicans) maintains control. Partisan gerrymandering is now overtly blessed by Alito and his Republican colleagues.

Second, while Alito’s opinion still acknowledges racial gerrymandering may be illegal, he sets such a high new legal bar to proving it that, in real life, challenges to racial gerrymandering will almost always fail.

Alito makes the absurd claim that when redistricting to pick their own voters, state legislatures must be presumed to be acting “in good faith.” According to Alito and his fellow Republican justices, “When a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in ‘offensive and demeaning conduct,’’’ adding “we should not be quick to hurl such accusations at the political branches.” God forbid.

Making claims of racial gerrymandering virtually impossible to prove wasn’t good enough for Clarence Thomas. He wrote a concurring opinion that racial gerrymandering is perfectly legal and even questioned the Supreme Court’s historic Brown vs. Board of Education decision which legally banned school segregation.

In her dissent, Justice Elena Kagan called Alito’s opinion “upside-down.” It eviscerates the post-civil war 13th, 14th, and 15th Amendments, handling “Equal Protection,” for example, as though it were effectively designed to protect white people against discrimination by blacks and other minorities. No wonder that an upside down American flag hung over Alito’s home.

Even if one accepts the conservative majority’s embrace of “originalism” as the sole method of interpreting the Constitution, they look only to the original intent of the founders who wrote slavery into the original Constitution and not to the original intent of the Reconstruction Amendments, which are also part of the Constitution, which were clearly intended to protect the rights of black former slaves from discrimination. Now, it seems, Alito and his colleagues view original intent as protecting whites from discrimination by blacks.

As The Atlantic’s Adam Server tweeted, “I hope people understand that what we are seeing is the systematic destruction of the civil war amendments by the Supreme Court, which are what made America an actual democracy and upon which all minority rights in the United States rely.”

Alito and his Republican colleagues are effectively overturning not only the Reconstruction Amendments but the purpose of the Civil War, as articulated by President Lincoln in the Gettysburg Address: “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”