Stephanie McCurry: The Confederacy was an antidemocratic, centralized State
To its credit, the majority in Ramos did emphasize the racist history of laws permitting non-unanimous jury verdicts. But it did so over the fierce objections of the three dissenters. Writing for them, Justice Samuel Alito accused the majority of using “ad hominem rhetoric” that “contribut[es] to the worst current trends” in public discourse. Alito also declined to concede the existence of this racist history, instead deeming the issue irrelevant to the outcome of the case. “If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable,” he wrote, as if the point were fairly debatable, “but what does that have to do with the broad constitutional question before us? The answer is: nothing.”
(Yet in another case this term, Espinoza v. Montana Department of Revenue, Alito wrote a concurring opinion in which he elected to emphasize the anti-Catholic history of certain laws prohibiting government aid to religious schools. It was not necessary for him to have done so to decide the case; he had already joined the majority opinion, which itself noted this history even though the case almost certainly would have come out the same way had the history of anti-Catholic bigotry been different. So it is not as if he disfavors talk of history in general.)
In another case, also this term, the Court again acknowledged some of the relevant history of racism in the United States, but it did not get the history quite right, making it sound better than it was. In Comcast Corporation v. National Association of African American–Owned Media, the Court held that a plaintiff who sues for racial discrimination in contracting under a federal law, 42 U.S.C. § 1981, has to show that race was not just a motivating factor, but a but-for cause of the plaintiff’s injury. It is much harder to prove but-for causation, which is why a major corporation, the Chamber of Commerce, and the Trump administration wanted this requirement, while civil-rights groups opposed it. This case obviously had to do with potential racism: It was expressly about proving certain claims of racial discrimination.
What is less obvious is that Congress originally passed Section 1981 as part of the Civil Rights Act of 1866, after the Civil War, to protect certain rights of formerly enslaved people. Concerns about whether the Thirteenth Amendment (which ended slavery) permitted Congress to pass this law led to the passage of the Fourteenth Amendment (which, among other things, includes a guarantee of constitutional equality).
What is also less obvious is how narrow was the understanding of racial equality embraced by the Congress that passed the Civil Rights Act of 1866. The Court in Comcast said that the law had been passed “to vindicate the rights of former slaves.” Sadly, the history is more complicated and depressing. The law was passed to protect the civil rights of formerly enslaved people, such as contracting, suing, and owning property. Civil rights for Black Americans at that time did not include political rights such as voting (hence the need for the Fifteenth Amendment) or social rights such as attending public schools with white children and marrying white people (rights—to America’s national shame—not protected by the Court until 1954 and 1967, respectively). These distinctions among civil, political, and social equality, which are not required by the text of the Constitution and no longer exist in U.S. constitutional law, were intended both to grant some measure of equality to the citizens who had been slaves and to strictly limit how much and what kind. By describing Section 1981 in sweeping terms, the Court failed to acknowledge the more sobering portions of the relevant history.