Anti-Anti Racism and the Republican Federal Courts

Republican judges are increasingly adopting the standard long advocated by conservative pundits — 1)that accusing someone of racism is so bad such claims require an extraordinarily high version of proof and 2)being falsely accused of racism is a much bigger problem in America than racism itself:

Yet Judge R. David Proctor, a George W. Bush appointee, did not simply dismiss this case. He handed down an opinion that, if embraced by higher courts, would eviscerate virtually any civil rights plaintiff’s ability to challenge a facially neutral law that was enacted in order to harm people of color. When a state can offer a “legitimate” — that is, a non-racist — explanation for why a law should exist “only the clearest proof” that lawmakers acted with racist intent will allow a court to look past that explanation.

It should be noted that none of the cases Judge Proctor cited to support this novel legal rule even come close to supporting it. And a panel of the United States Court of Appeals for the Eleventh Circuit tossed out Porter’s “clearest proof” standard last July. “Recklessly plucked from an unrelated line of precedent,” Judge Charles Wilson wrote of Proctor’s attempt to immunize racist lawmakers from suits, “this requirement runs contrary to decades of established equal protection jurisprudence.”

Yet there is an unhappy epilogue to this story for future civil rights plaintiffs. The full Eleventh Circuit, now flush with three Trump judges, announced on Wednesday that it was tossing out Judge WIlson’s opinion and that the full court would rehear the case. There’s now a very real risk that Proctor’s “clearest proof” test will become the law in several Southern states.

Nor is Proctor’s opinion an isolated incident. To the contrary, it is part of a much larger pattern from top Republican advocates, Republican judges, and top Republican advocates who became Trump judges, to hamstring any suit alleging racial discrimination by lawmakers. Indeed, some of these opinions go even further than Proctor — not simply trying to boot civil rights cases out of court, but suggesting that the mere allegation that a lawmaker acted with racist intent is itself an unforgivable sin.

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In case there’s any doubt, the bitter racial resentment seen in Duncan’s petition and Jones’ opinion is not limited to a handful of lower court judges. Much of it became the law of the land after the Supreme Court’s decision in Abbott v. Perez last June.

To be sure, Justice Samuel Alito’s majority opinion in Perez is not nearly as vitriolic as Jones’ dissent in Veasey. While Jones writes with the barely harnessed rage of a MAGA rally, Alito writes with the clinical detachment of a eugenics textbook.

Yet, even if the Roberts Court is unlikely to embrace the Trumpian bombast of judges like Jones and Duncan, Perez shows that the Supreme Court’s Republicans are broadly sympathetic to Jones’ goals.

The facts of Perez are unusual and unlikely to repeat — especially after the Supreme Court’s 2013 decision striking down much of the Voting Rights Act. In 2011, while the Voting Rights Act was still intact, Texas drew racially gerrymandered maps. A federal court in DC ultimately concluded that these maps were not legal.

Thus, as Texas’ 2012 primary elections drew nigh, the state did not have lawful maps that it could use in those elections. With no time to fully litigate the case and craft maps that fully complied with the law, a federal court in Texas drew rushed, interim maps in March of 2012 so that Texas could still have an election. Many of the districts in this interim map closely resembled the racially gerrymandered districts in the 2011 maps, and the court emphasized that “this interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case.”

Then, in 2013, the state legislature ratified these interim maps as its own — thus leaving many of the still-gerrymandered districts from the 2011 maps intact. Alito’s opinion in Perez held that most of these districts will never be fully scrutinized by the courts.

“Whenever a challenger claims that a state law was enacted with discriminatory intent,” Alito wrote, “the burden of proof lies with the challenger, not the State.” That is, indeed, the ordinary rule in racial discrimination cases. But in this case, a court had already determined that the 2011 maps were illegal, and Texas’s 2013 law retained many of the gerrymandered districts.

Nevertheless, Alito concluded, nearly all of these districts must stand. According to Perez, Texas didn’t enact the 2013 law because it wanted to enshrine gerrymandered maps into law, it did so because “it wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”

Alito, in other words, created a distinction between laws enacted with racist intent, and laws enacted to shut down litigation alleging racist intent. That’s a mighty fine distinction. Indeed, it is such a fine distinction that it raises a cloud of uncertainty over any future lawsuit alleging that lawmakers acted with a discriminatory purpose.

After Perez, lawmakers now enjoy such a strong presumption of racial innocence that only the most egregious cases have a chance of prevailing in court. The Supreme Court may not speak with the caustic voice of an Edith Jones, but it appears eager to protect white officials from the mere allegation that they might be racist.

As I’ve mentioned before, Perez v. Abbot is the end of a classic Catch-22 that started with Shelby County. The latter opinion says that arbitrarily suspending preclearance is no bog deal because the remedies in Sections 2 and 3 remain available, and the the former makes Sections 2 and 3 effectively unenforceable. Republicans on the federal courts are, in other words, fully Trumpian; it’s just a question of how much technical detachment they use to express the same underlying ideas.