Sam Alito, Anti-Anti Racist

Apodaca v. Oregon, one of Lewis Powell’s bizarre “I cannot choose to decide but I still must make a choice” jobs that no other justice actually agreed with but carried considerable de facto precedential force because he was the median vote on the Court, held that the Sixth Amendment required unanimous jury convictions, but this aspect of the Sixth Amendment was not “incorporated” against the states. When the Court heard the case this year, then, it had to balance the principle of stare decisis with the also important principle “it’s not your job to be as confused as Lewis Powell.” (As the plurality put it, “stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”) Wisely, it chose the latter course, overruling Apodaca and holding that the Louisiana and Oregon laws that permitted non-unanimous jury convictions was unconstitutional. There were two compelling reasons for this. First, an anomalous opinion that only one of nine justices actually signed on to should not carry much force of stare decisis. And second, the roots of the rule were, as noted Trotskyite Neil Gorsuch observes, howlingly racist:

Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements.

This led, as you might expect, to another entry in Sam Alito’s endless series of “pointing out racism is much worse than racism” opinions. Leah Litman:

This language acknowledging this history outraged the dissenters—Justice Samuel Alito, Chief Justice John Roberts, and Justice Elena Kagan. Alito’s dissent claimed that the talk of racism was getting in the way of pure legal reasoning. “Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend.” The dissent maintained that “all the talk about the Klan, etc., is entirely out of place” and failed to “set an example of rational and civil discourse instead of contributing to the worst current trends.”

For the dissenters, the act of pointing out the rule’s unmistakable racist origins—of accusing the state of being racist—was worse than the sordid, racist history itself.

I mean, once you start acknowledging racism, you might have start doing stuff like “enforcing the Voting Rights Act,” and that is just going way too far.

As for why Kagan joined this disgraceful dog of a dissent, I agree that it was almost certainly part of her strategic campaign to save Roe v. Wade. Do I think it will work? Heavens, no. But since her vote didn’t mean anything here it’s not something I’m inclined to be exercised that much about either way.