Racism strikes at the heart of SCOTUS decisions

The question is beyond legality, it's one of the heart, and the Constitution

May 01, 2026

During the debates at the constitutional convention in 1787, nobody mentioned slavery. The topic was taboo, because the southern states would not support any constitution that hampered their economic backbone, which was built on the backs of enslaved Black people. The only tortured references to it use language like “…shall be determined by adding to the whole Number of free Persons…three fifths of all other Persons.” (Article I, Section 2.) It’s obvious what they were referencing.

In Article I, Section 9, the language was even more oblique: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” They were talking about the slave trade. In 1807, Congress enacted a law banning the importation of slaves, effective on the earliest possible date allowed by the Constitution, January 1, 1808.

When the southern states ratified the Constitution, they knew slavery had its days numbered, but they sought to continue the “peculiar institution” as long as possible through the number of enslaved Black people already in the country. Georgia was the first southern state to ratify, on January 2, 1788, in a unanimous vote. North Carolina was the last southern state, eleven months later, and it was not unanimous (N.B.: Georgia used a ratifying convention of just 26 members; Georgia had sent six delegates to Philadelphia; North Carolina’s convention had 271 delegates, 77 voted against.)

The end of the slave trade was not the end of slavery. The Supreme Court did its best to preserve the delicate balance of the Union, and in the process, trashed every moral insight that the practice itself is wholly against God and man. It took the election of anti-slavery Republican Abraham Lincoln as president to finally push the southern states into rebellion and secession. Lincoln’s first inaugural address closed with this plea:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The words fell on deaf ears. The bloody civil war that followed ended over 600,000 American lives. In the practical sense, it ended slavery, as Lincoln’s Emancipation Proclamation gave U.S. troops the ability to free enslaved people. In law, the 13th Amendment ended slavery, as federal troops occupied the southern states. The 14th Amendment made the rights of freed slaves the same as all other citizens, and prohibited states from stripping those rights.

But it didn’t stop racism, and institutional racism, from infecting every aspect of American life. In the industrial north, where Blacks migrated in search of jobs and opportunities, as well as fleeing persecution in the south, a practice known as “white flight” kept the races separate. In the south, Blacks and whites lived in close proximity, but people were expected to “know their place.” The way I learned it, racism in the north was Blacks can be “high but not close,” while in the south, it was “close but not high.” This means northern Blacks could hold office, start businesses, and be respectable members of society in many ways, but they could not live among the white residents, and their children were not welcome to mix with white people. In the south, Black and white kids did play together, but those same kids grew up to become racist adults, believing that Blacks were inherently inferior, because that is what they were taught.

In the military and federal service, integration began, and continued through President Teddy Roosevelt, and then the racist Woodrow Wilson ended it and implemented segregation, which continued through WWII. In the south, the “separate but equal” doctrine, made legal by the 1896 case Plessy v. Ferguson, extended from schools, to bus seats, to bathrooms, and water fountains. Blacks were given every sign to “know their place” and grew up inculcated with a racist society against them.

In the 1960s, much of that was overthrown. In a stunning switch, Democrats went from the party of slavery to the party of civil rights in just a decade, under President Lyndon Johnson. There were many Republicans who believed in, and practiced, racial equality, notably Arizona Senator Barry Goldwater. The smearing of Goldwater into some kind of right-wing monster is a sin against history.

In 1965, Congress passed the Voting Rights Act, which was designed to end racist practices in the south that were designed to keep Blacks from political office. In 1917, Georgia adopted the “County Unit System” that favored rural and “town” counties over urban, by using a winner-take-all formula for allocating votes. The Supreme Court struck this system down in 1963, as a violation of the 14th Amendment and “one person, one vote.” The VRA went further, and in its amendments by Congress through the 1970s and 80s, had developed formulas for representation, and legal review of southern district maps.

In 2013, the Supreme Court invalidated the “preclearance” formula passed in 2006, in Shelby County v. Holder. Since then elements of the VRA have been dismantled as the Court became more “originalist” in nature. This has been a back-and-forth between Congress and the Supreme Court, dealing with formulas and provisions to keep systemic racism out of districting decisions.

The Supreme Court, this week, struck down Louisiana’s district map, which was drawn in compliance with VRA, in response to a challenge by a group of “non-African American” votes. This didn’t, as so many news outlets in the progressive bubble have claimed, strike a “severe blow” to VRA. It did, in fact recognize that Section 2 of the Act prohibits any racial discrimination, including against white people, in the drawing of district maps.

And this is the heart of the argument.

Modern liberal progressives, drawn to the Democratic Party, believe that racism only works in one direction: white people discriminating against Blacks. In their view, there is no such thing as “reverse racism,” and many have gone further, to say that Black people cannot be racists, since the definition of the word implies white racism against non-whites. The very conception of a group of “non-African Americans” winning a case in the Supreme Court indicts the majority of the Justices as themselves racist, or supporting racism, even Clarence Thomas, who is Black.

The modern core of the Democratic Party does not recognize racism against Asians, who are displaced in education due to affirmative action programs that favor other minorities. It does not recognize systemic persecution of Jews with hate crimes, because the vast majority of Jews are white. It does not recognize the tilt of drawing two majority Black districts, gerrymandered to make them Black majorities, in Louisiana, in order to satisfy “anti-racist” VRA interpretations.

But here’s the rub. The Trump administration cheers rulings that roll back affirmative action, that weaken VRA, and that make the kinds of institutional racism that used to exist, possible once again.

The question at the heart of the SCOTUS rulings is, what will the Republican Party in the Trump era, and businesses who have aligned themselves with that power structure, do with the space now created by those decisions? Is racism at the heart of the Trump administration’s policies?

Democrats say it is. Trump defenders deny it. The future will show who is right and who is wrong. Many conservatives of all ethnicities are not racist. But some who flirt with the White House, are definitely racist in their beliefs and actions. These people are empowered to go back to old ways and institute racist practices that laws like the VRA were designed to eliminate. Assuming that there are no racists (or new ones won’t rise up), in the quest to enable truly race-blind laws, the Supreme Court might have made space for people who are indeed racist to do racist things. And the Trump administration is giving them plenty of leash to run.

Another SCOTUS ruling that we await is the one extending the stay on the Department of Homeland Security ending Temporary Protected Status for Haitians and other immigrants. I wrote before about this sad situation, which I consider to be, in many ways, evil. Sure the government has the right and legal ability to end TPS protection, and send many who are here under that visa, back to their home country. But doing that in the environment where other types of visas are now unavailable, is that racism, or at least bigotry?

It’s clear that people like Stephen Miller are not only against illegal immigration, but also any immigration. This is an expression of the “blood and soil” belief in American exceptionalism. That, of course, is trash, because America is built on immigrants. But the actions of the Trump administration, ending processing of applications for the long-running “Green Card Lottery,” assessing huge ($100,000) fees for H1B visas for immigrant applicants who are not in the U.S. already. It takes nine months for a new H1B designation to go into effect; immigrants who have their TPS status revoked can’t stay that long, which means few companies are willing to pay that huge fee to get them back.

Not only Haitians, but others like Ethiopians and others are waiting for the ruling on TPS, because if the Court rules with the Trump administration, they could all be deported almost immediately, whether they are here working, or raising families. They will go from “legal immigrant” to “illegal alien” in one day. Is racism at the core of this systemic approach to clearing out immigrants, both legal and illegal?

Giving space to the executive branch to do things it is legally mandated to do by the Constitution is definitely within the purview of the Court, and in the doctrine of textualism or originalism. But the Court also has a mandate to keep the United States from doing harm to people who live here, to be loyal to the spirit of the Declaration of Independence, that states “all men are created equal,” and entitled to the right to life, liberty, and the pursuit of happiness. Is it proper for the Court to give space to the executive branch, when it is engaged in denying those rights to people based on race, or some pre-ordained determination of which countries are “good” and which are “bad” for America?

We could find our future selves, and our children, looking back on these decisions are another Plessy v. Ferguson, enabling the worst of us to institute systemic racism where so much has been accomplished to banish that from our society. Just because progressives are wrong about the existence of racism against white people, Asians, and Jews, it doesn’t mean the rise of racism against Blacks is not worth defending against.

Just like we’d never want to go back to slavery, why should we believe that there are not people who would not return to the systemic racism, against minorities, or immigrants, or Blacks, if given the chance? Why give them the chance? The Supreme Court and the Trump agenda may do exactly that.

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