Opinion: Call Alabama’s defiance what it really is

The current US Supreme Court, stacked with right-wing justices, has in recent years dismantled many of the core civil rights programs of the past 50 years, from voting rights to affirmative action to anti-discrimination law. So it came as a surprise — and for many, a relief — when the court handed down a 5-4 decision in June, declining to gut the remaining provisions of the Voting Rights Act of 1965. Instead, the court found that Alabama’s new redistricting plan discriminated against Black voters and ordered the state legislature to redraw it.

Their new map is out, and it makes clear that the Republican-controlled legislature in Alabama has flouted the court order. Republican Gov. Kay Ivey seemed content to ignore it as well when she signed the redistricting bill (which must now go to a federal court for approval). “The Legislature knows our state, our people and our districts better than the federal courts or activist groups,” she said in a statement.

This defiance of the court by Alabama Republicans is notable not because their objection to the ruling is unique or surprising  — there has been widespread frustration with the Supreme Court’s other recent rulings as well as calls to question this court’s legitimacy — but rather what they are defying. They are rejecting an order to stop discriminating against Black people. Understood in that historical vein, the action of Alabama Republicans fits into a long, sordid backstory.For much of the Supreme Court’s history, the justices were firmly on the side of discrimination. In the years preceding the Civil War, the court decided in Dred Scott v. Sandford that no Black person could be a citizen of the United States, regardless of whether they were enslaved or free. In 1883, it struck down the federal Civil Rights Act of 1875 that had “affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places of public amusement.”  In the 1896 case Plessy v. Ferguson, the court legally sanctioned the segregation regimes emerging across the South.

That started to change in 1938, when the court began to lay the groundwork for the civil rights jurisprudence of the mid- 20th century. In a case about the regulation of adulterated milk sales, Justice Harlan Stone suggested in his majority opinion that, while the court presumed the constitutionality of many laws, there was an exception: Should the court be asked to evaluate laws that discriminated against “discrete and insular minorities,” it would apply a higher standard of judicial review. That notion of “strict scrutiny” would inform a number of the court’s rulings against racial discrimination in the years that followed, most notably in the unanimous Brown v. Board of Education decision in 1954 ordering desegregation of schools.