Legal Post-Racialism as an Instrument of Racial Compromise in Shelby County v. Holder
LEGAL POST-RACIALISM AS AN INSTRUMENT OF RACIAL COMPROMISE IN SHELBY COUNTY V. HOLDER
The timeline of the Black civil rights movement in the United States reveals a long history of struggle for liberation, advancement, equality and full citizenship. Each gain has invariably met with either swift retaliation on the societal level or more subdued, gradual and systemic retrenchment. In each historical era, retaliation and reversal have caused profound losses-of bodily integrity and life, and legal and political rights. The 2013 decision by the Supreme Court in Shelby County v. Holder to eviscerate the Voting Rights Act of 1965 1 is but one of the most recent losses that can be recorded on the timeline of struggle for racial justice in the United States.2 Professor Sumi Cho argued in 2009 that it was too early to judge whether the Supreme Court would take a “post-racial turn” in its jurisprudence. 3 Post-racialism “in its current iteration is a twenty-first century ideology that reflects a belief that due to racial progress the state need not engage in race-based decision-making or adopt race-based remedies, and that civil society should eschew race as a central organizing principle of social action.”4 Cho posits that the imminence of a post-racial philosophical and rhetorical shift in the Court's jurisprudence depends upon whether “cases dealing with racial remediation effectuate a retreat from race5.” Four indicators in Court opinions of a post-racial retreat include: (1) a claim that “racial progress or transcendence” is sufficient to render race-based remedies
unnecessary in the present day; (2) promotion of “race-neutral universalism”
not only as a normative, aspirational ideal—as in the Doctrine of
Colorblindness—but as a descriptive, operational reality; (3) the drawing of
“moral equivalences” between racism and race-based civil rights remedies;
and (4) any language that indicates a general “distancing from standard
civilrights approaches.”6 Based on these criteria the majority opinion in Shelby
County strongly indicates a move toward post-racialism in the jurisprudence
of the Court.
Racial Progress and Transcendence
The VRA, particularly Section 4, contains the memory of American
racial injustice and its ongoing legacy. 7 It covers the Deep South—the
original Confederate states that seceded from the Union and fought the Civil
War over their ability to continue practicing slavery—as well as other states
and jurisdictions. 8 During the post-Reconstruction period, Louisiana and
Mississippi blazed the trail for other Southern states in disfranchising Black
citizens through poll taxes and literacy tests, often exempting Whites
through grandfather clauses. 9 By ruling such methods and devices
constitutional in 1898, the Supreme Court laid the foundation for their
proliferation throughout the South.10 These laws would remain in effect until
the enactment of the VRA in 1965. After decades of Jim Crow, when support
for integration entered the political mainstream, elected representatives of
these same Southern states drafted and signed the Southern Manifesto
(1956) expressing their opposition to federal desegregation efforts. 11 Thus,
Southern states were flashpoints in the American civil rights movement.
Their often violent resistance to desegregation ushered in the Civil Rights era
of formal equality at law, including voting rights and protections embodied in
7 Section 5 of the VRA required states covered under Section 4 to seek federal preclearance for any
changes to voting laws. 42 U.S.C. § 1973 (2012). Shelby County held that Section 4 was
unconstitutional, effectively nullifying Section 5 as well. Shelby Cnty., 133 S. Ct. at 2615.
8 With the exception of some jurisdictions, covered states include: Alabama, Alaska, Arizona,
Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Shelby Cnty., 133 S. Ct. at
9 Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive
Era, Part 3: Black Disfranchisement From the KKK to the Grandfather Clause, 82 COLUMBIA L.
REV. 835, 845 (1982).
10 Williams v. Mississippi, 170 U.S. 213 (1898); see also Schmidt, supra note 9, at 848.
11 The Southern Manifesto, 102 CONG. REC. 3948 (1956).
12 Cho, supra note 3, at 1605.
An overwhelming amount of social scientific evidence demonstrates
that current conditions in jurisdictions covered by Section 4 are consistent
with past conditions. Not only do “elevated rates of voter discrimination
remain a serious concern in the covered jurisdictions,”13 which was verified
by the Congressional Record supporting the 2006 reauthorization of the VRA,
but the covered states continue to be among “the worst of the worst actors.”14
Six of the nine fully covered states have passed new voting
restrictions…including voter ID laws (Alabama, Mississippi,
South Carolina, Texas and Virginia), limits on early voting
(Georgia) and restrictions on voter registration (Alabama and
Texas). But only one-third of non-covered jurisdictions passed
similar restrictions during the same period.15
Shelby County claims that there is sufficient racial progress or
transcendence to warrant the elimination of Section 5 voter protections. In
the two main arguments, Chief Justice Roberts’ quotes his own opinion in
Northwest Austin Municipality Utility District Number One (2009): (1)
“things have changed in the South,” and (2) the “evil that Section 5 is meant
to address may no longer be concentrated in the jurisdictions singled out for
preclearance.”16 In other words, Jim Crow is over; remedies meant to address
systemic subordination and oppression are antiquated and unnecessarily
burdensome. Even if this argument is unconvincing, Roberts claims that the
South should not be specially scrutinized because voter discrimination does
not exclusively occur in the South. But the premise of the VRA is not that
voter discrimination occurs exclusively in the South, which is why the
Fifteenth Amendment covers voter discrimination in the United States
13 David C. Kimball, Judges Are Not Social Scientists (Yet), 12 ELECTION L. J. 324 (2013).
14 Ari Berman, Why Are Conservatives Trying to Destroy the Voting Rights Act?, THE NATION, Feb.
5, 2013. Berman explains that, although the number of Black elected officials and voters have
greatly increased since the VRA, voting restrictions and redistricting maps are contemporary
methods of discriminatory disfranchisement utilized to dilute the power of a Black electorate. In
a modern version of the Southern Strategy
Republicans used their control of state legislatures following the 2010 election to pass
redistricting maps that have led to a re-segregation of Southern politics, placing as many
Democratic lawmakers into as few majority-minority districts as possible as a way to
maximize the number of white Republican seats.
GOP-controlled Virginia recently redrew its maps “to reduce Democratic seats by diluting black
voting strength in at least eight districts.” Id.
16 Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 202-3 (2009).
generally. Rather, the VRA is needed because voter discrimination continues
to be very disproportionately concentrated in covered states.
Nonetheless, the Supreme Court adopted Roberts’ position and in a
predictable 5-4 decision, ruled that Section 4 of the VRA is unconstitutional
because its coverage formula is outdated, “based on decades-old data and
eradicated practices.” 17 Within two hours of the release of the decision in
Shelby County, Texas rushed to redraw district lines and soon began to
enforce strict photo identification rules. Both practices had previously been
found to be discriminatory by a federal court.18 Texas read Shelby County as
license and impunity for discriminatory redistricting.19
Post-racial jurisprudence abandons the policy of race-based remedies
for race-based wrongs “in favor of seemingly universal solutions.” 20 The
methods by which courts have traditionally reproduced racial hierarchy that
can be seen in Shelby County include the utilization of seemingly neutral, but
racially contingent, legal rationales, doctrines and principles.21 These include
the refusal of the federal government to hold “concurrent jurisdiction with
states over civil rights,” and the concession to “home rule” in Southern states,
using the legal principle of federalism based on states’ rights.22
Federalism based on states’ rights, however, can only appear neutral
when it is socially and historically de-contextualized. 23 In context, the
racialized nature of its development and utilization is clear, particularly as a
means of achieving what Critical Race Scholar Derrick Bell calls “racial
compromise.” Racial compromise is “a process whereby disparate groups of
whites settle their political differences in a process that involves the
17 Shelby Cnty. at 3, 18, 20, 33.
18 State v. Holder, 888 F. Supp.2d 113 (Dist. Ct. D.C. 2012), Vacated by, remanded by Texas v.
Holder, 2013 U.S. Lexis 4937 (U.S., June 27, 2013), State of Texas v. United States of America,
887 F. Supp.2d 133 (Dist. Ct D.C.) (2013) vacated by, remanded by Texas v. United States, 2013
U.S. LEXIS 4927 (2013).
19 Michael Cooper, After Ruling, States Rush to Enact Voting Laws, N.Y. TIMES, JULY 5, 2013.
20 Cho, supra note 3, at 1601.
21 Id. at 1606-1611.
23 Even the methods and devices of disfranchisement such as literacy tests and grandfather
clauses that are now admitted to be discriminatory, including by conservatives, were once ruled
Constitutional. These rulings were based on the rhetorically universal, but racially contingent,
rationale of “equal application.” A law shall be considered non-discriminatory when it appears to
apply to all citizens, regardless of its impact or intent. Williams v. Mississippi, 170 U.S. 213
(1898); Schmidt 1982, supra note 11, at 846.
LEGAL POST-RACIALISM AS AN INSTRUMENT OF RACIAL COMPROMISE
IN SHELBY COUNTY V. HOLDER
involuntary sacrifice of Blacks.” 24 Bell finds that the “ultimate racial
compromise” was the Hayes-Tilden Compromise of 1877, which formally and
abruptly terminated Reconstruction and ushered in the Jim Crow era by
conceding “home rule” to the South. 25 To achieve “national unity”—the
consolidation of power among White citizenries of the North and South—
disparate, conflicting groups of Whites resolved the problem of fractured
governance and Democratic-Republican political strife by abandoning
Reconstruction, and thus, the recently emancipated slaves to
Whitesupremacist retribution. In exchange for support in electing President Hayes,
Republicans agreed to give Democrats “home rule” under the auspices of
“equal sovereignty of the states,” the same limiting principle invoked by the
majority opinion in Shelby County.26 Using “neutral-sounding [but racially
contingent] rationales such as ‘no private constitutional rights,’ ‘no special
rights,’ and ‘equal application’” the Supreme Court agreed that there should
be no federal interference forcing Southern states to comply with civil
rights.27 Since then, invoking states’ rights, home rule or respect for state
and local processes in the South has become a “dog whistle” political code for
obstruction of racial justice, to deny as much as possible the rights granted in
the Reconstruction Amendments.28
24 Cho, supra note 3, at 1606 (discussing DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW 40-47
(5TH ED. 2004).
26 The South was a stronghold of the Democratic Party prior to the electoral realignment that
occurred after Democrats began to support civil rights legislation, especially after Congress
passed the Civil Rights Act of 1964 and the VRA of 1965 under Democratic President Lyndon B.
Johnson. The former Confederate states became Republican strongholds after Republicans
adopted the “Southern Strategy” -- racist pandering through “dog whistle” coded messages about
“states’ rights” and then “law and order,” the latter tapping into anxiety about prospective or
emerging social change. Dog Whistle politics continues to figure prominently in the political
ideology of the right and the most conservative part of the Republican Party. Michael J. Klarman,
Brown, Racial Change, and The Civil Rights Movement, 80 VA.L. REV.7 (1994); See generally, IAN
HANEY LOPEZ, DOG WHISTLE POLITICS: HOW CODED RACIAL APPEALS HAVE REINVENTED RACISM &
WRECKED THE MIDDLE CLASS (2014).
27 Cho, supra note 3, at 1608.
28 The Reconstruction Amendments include the Thirteenth, Fourteenth, and Fifteenth
Amendments of the Constitution—respectively outlawing slavery, and guaranteeing equal
protection and voting rights. U.S. Const. Amend. XIII; U.S. CONST. Amend. XIV.; U.S. CONST.
Amend. XV. For a more thorough explanation of the origins and politics of Shelby County, see
Berman, supra note 14. Berman explains Justice Roberts’ advocacy against Section 2 of the VRA
prior to his appointment to the Court and the interrelationship between his jurisprudence and the
conservative advocacy of Ed Blum, founder of a legal defense fund organized to fight the VRA. See
also Zack Beauchamp, How Racism Caused the Shutdown, THINK PROGRESS, October 9, 2013.
Beauchamp explains that, like states’ rights during de jure segregation, advocacy of a “minimalist
federal government” during de facto segregation is dog whistle rhetorical device that appears
racially neutral because it implies government non-intervention into the marketplace. However, it
Shelby County exemplifies the application of a racially contingent legal
principle. It appears universal—federalism based on states’ rights—but it is a
form of racial compromise deployed to destroy or eliminate Section 5 voter
protection for African Americans. Shelby County held that federal oversight
of and intervention in the way in which the South chooses to handle matters
related to the voting rights of minorities is a violation of the “equal
sovereignty of the states.” 29 The claim that “things have changed in the
South” sufficient to warrant eradication of minority voter protections is an
example of both descriptive and operational racial transcendence.
C. Moral Equivalence Between Racism and Racebased Civil Rights Remedies
During the Shelby County hearing, Justice Scalia, who later concurred
in the majority opinion, commented that the VRA is a “perpetuation of racial
entitlement.” 30 Justice Sotomayor, who dissented, replied that,
“Discrimination is discrimination. It’s ongoing today. This is not racial
entitlement; this is about a basic fundamental right that for so many years
America ignored.”31 Racial entitlement has historically meant that Whiteness
is treated as “a valuable form of property recognized and enshrined by law as
a normative civic and legal ideal.” 32 The absence of this property interest has
meant a lack of the benefits of citizenship, including the right to vote. 33
Scalia’s remark implies that protection of minority enfranchisement is
morally equivalent to the racial entitlement of long-standing, historical White
Justice Souter has described the persistence of minority voter suppression
tactics in the South into the new millennium as pouring “old poison into new
bottles,” precisely what Section 5 was meant to prevent the covered
jurisdictions from doing or allowing. 34 Similarly, deploying race-neutral,
is actually the product of an alliance between economic libertarians among Republican Party
conservatives and racial conservatives of the old Democratic Party that forged today’s more
conservative Republican Party.
29 Shelby Cnty., supra note 1, at 6.
30 Debra Cassens Weiss, Scalia: Reauthorized Voting Rights Act was ‘perpetuation of racial
entitlement,’ A.B.A. J., Feb. 28, 2013,
_of_racial_entitlemen/ (Last visited September 1, 2013).
32 See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1701, 1713-14 (1993).
34 Debo P. Adegbile, Voting Rights In Louisiana: 1982-2006, 17 S. CAL. REV. L & SOC. JUST. 413,
seemingly universal principles and the co-optation of civil rights discourse for
racially regressive purposes is not a new form of racial compromise. Racial
subordination is disguised in the conservative post-racial jurisprudence of
Shelby County where claims of racial progress, transcendence and moral
equivalence “do the ideological work of colorblindness without so much of its
retro-regressive baggage.” 35 Conservative post-racialist jurisprudence
promotes a “general distancing from standard civil rights approaches”36 by
providing a veneer of newness to old politics.
In the racial-dictatorship era, unreconstructed white normativity
prevailed and legislatures passed laws that were clearly ‘race-d’ to
disadvantage peoples of color under the auspice of ‘states-rights’-based
federalism. The courts in the racial-dictatorship era provided little
relief. Indeed, courts eviscerated the meaning of the Reconstruction
Amendments and civil-rights statutes by using seemingly neutral
strategies to disenfranchise peoples of color in lockstep with
sociopolitical forces that sought to restore the South’s honor.37
From the Hayes-Tilden Compromise of 1877 to Jim Crow; from the
Southern Manifesto to the Southern Strategy, the timeline recording the
struggle for racial justice is replete with instances of racial compromise
achieved by “race-neutral” means. Racial compromise denies full citizenship
by reducing Black citizens to symbols deployed in the performance of political
theater—a process of structural violence that interlocks with physical
violence, to which governments on the local, state and federal levels have
often been complicit.38 During the post-Civil War era, in what sociologists
Omi and Winant 39 identify as a racial dictatorship, the Reconstruction
Amendments provided a “brief respite,” a transient benefit granted because
of “an interest convergence in maintaining Republican Party influence in the
South.”40 Similarly, the decision in 1954 in Brown v. Board of Education that
35 Cho, supra note 3, at 1599.
37 Id. at 1606.
38 Anthony Paul Farley, Lacan & Voting Rights, 13 YALE J. L & HUMAN. 283 (2001), hereinafter
Farley 2001; Dwight L. Greene, Justice Scalia And Tonto, Judicial Pluralistic Ignorance, And The
Myth Of Colorless Individualism in Bostick v. Florida, 67 TUL. L. REV. 1979, 2023 (1993).
39 MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S
TO THE 1990S, at 71 (2d ed. 1994), cited in Cho, supra note 3, at 1606.
40 Cho, supra note 3, at 1606. Interest convergence theory postulates that civil rights gains are
conditional, contingent and fleeting; that “…substantive legal gains for racial minorities seldom
occur unless they converge or are at least perceived as converging with the interests of white
elites…as advancing, or at least not hindering, the material interests of dominant groups.”
held segregation of public schools unconstitutional, and the political victories
of the Civil Rights Movement that followed during the 1950s-60s, including
the VRA, resulted from an interest convergence with Cold War era politics
“largely driven by geopolitical concerns.”41 To fulfill its aspiration of being
perceived as a global symbol of democracy in light of Soviet propaganda to
the contrary, the United States was compelled to rehabilitate its image when
the international spotlight fell on Jim Crow segregation and racial violence in
the South. The US government also needed to appease Black veterans
aggrieved by the irony of returning to Jim Crow after contributing to a war
effort against racist regimes in Europe.42
Shortly after passage of the Reconstruction Amendments, the Supreme
Court deployed “limiting principles” to eviscerate them.43 Terrorism against
Black voters and the Black population in general burgeoned, particularly in
the form of lynching conducted by “vigilantes.” White supremacist
paramilitary organizations such as the Klan generated a sense of solidarity
and community among White participants through violent reassertion of the
boundaries of racial identity and power.44
The current Republican agenda has its historical corollary, but its
modus operandi has necessarily changed from the old conservatism of
Southern Democrats in response to the racial consciousness of the Civil
William M. Carter, The Thirteenth Amendment, Interest Convergence, and the Badges and
Incidents of Slavery, 71 MD. L. REV. 21, 23 (2011).
41 Carter, supra note 40, at 24 (discussing MARY L. DUDZIAK, COLD WAR, CIVIL RIGHTS: RACE AND
THE IMAGE OF AMERICAN DEMOCRACY (2000) and her history describing the relationship between
American foreign policy and the civil rights movement in the United States); see also Jennifer G.
Correa, The Targeting of the East Los Angeles Brown Berets by a Racial Patriarchal Capitalist
State: Merging Intersectionality and Social Movement Research, 37 CRIT. SOCIO. 83, 95 (2011).
42 Correa, supra note 41, at 95.
43 Cho, supra note 3, at 1611.
44 Sherrilyn A. Ifill, “Creating A Truth And Reconciliation Commission For Lynching,” 21 LAW &
INEQ. 263, 294 (2003); Farley, supra note 38; see also Anthony Paul Farley, The Black Body as
Fetish Object, 76 OREGON L. REV. 457 (1997). In a general sense, segregationist politicians,
through racially charged official discourse and “law and order” actions, created the optimal
political conditions for racial violence, and where politically expedient, governmental officials
have been accessories to racial violence, particularly lynchings. Federal government complicity to
racist violence did not stop at lynching. For decades the US Senate blocked anti-lynching
legislation, finally apologizing for its obstructionism in 2005. “Nearly 200 anti-lynching bills were
introduced, three of which made it past the lower House of Representatives between 1920 and
1940. But despite the support of seven US presidents, the Senate stopped any of them becoming
law.” “Senate apologizes over lynchings,” BBC News, June 14, 2005,
http://news.bbc.co.uk/2/hi/americas/4090732.stm (Last visited September 1, 2013). See also
Beauchamp, supra note 28. Beauchamp explains that the refusal to pass an anti-lynching bill was
due to a tacit political bargain struck during Franklin D. Roosevelt’s presidency that in exchange
for Southern Democrats’ support for the New Deal, Northern Democrats would not vote for an
Rights era, which was generated in the broader context of anti-colonial
struggle following World War II. The reproduction of racial hierarchy has had
to shift from de jure articulation to quieter, de facto, configurations. Restoring
Southern honor and expunging “unfair stigma” from the South—without a
comparable level of commitment to civil rights—has been a mainstay of
Southern conservatism for the century and half since the Civil War.
Restoring Southern honor is not about racial justice, but the management of
public perception while maintaining racial hierarchy. Though the
Reconstruction Amendments are unconditional in their guarantees, interest
convergence theory explains the political contingency of their
implementation 45 and the precarious social condition of those whom the
statutes were intended to protect.
In the post-Cold War era of US-driven globalization and global
economic governance, federal advocacy of civil rights has diminished in key
ways, requiring examination of contemporary racial compromise. “Southern
conservatives had long opposed the VRA, but until recently they were a
minority within the GOP.” 46 Commentators have recently observed that
present day Conservatives have challenged the VRA for three reasons: (1) the
makeup of the Republican party has become Whiter, more Southern and
more conservative 47 ; (2) there is substantial funding for conservative
advocates who have been trying for a quarter century to destroy the VRA,48
and (3) because the Republican Party has failed to attract a substantial
portion of minority votes, it focuses efforts, instead, on suppressing the votes
of an “increasingly diverse electorate” in order to maintain power.49
The Rehnquist and Roberts Courts (1986-2007) have been post-Civil
Rights Courts 50 in which the Colorblindness Doctrine prevailed and civil
rights claims of White men and women in employment discrimination and
45 Interest convergence theory “does not contend that individual whites perform a conscious
calculus of whether certain advances in racial justice will work in their material self-interest.
Rather [it] suggests that whites are likely to react adversely to civil rights measures that they
perceive as solely benefiting racial minorities.” Carter, supra note 40, at 25. It is also “not merely
a variation on the theme that ‘all law is politics,’” but with regard to judges, especially Supreme
Court Justices, “given the narrow segment of the mostly white elite from which federal judges
(and especially Supreme Court Justices) are drawn, interest convergence theory suggests their
worldview and life experience will generally be such that remedies perceived as benefiting only
people of color are unlikely to find their favor.” Id.
46 Ari Berman, Destroying the Voting Rights Act, THE NATION, Feb. 8, 2013.
47 Id., Beauchamp, supra note 28.
48 Berman, supra note 14.
50 Prior to his appointment, Chief Justice Rehnquist was a vocal segregationist. Cho, supra note 3,
at 1614-16. His successor, Chief Justice Roberts, delivered the majority opinion in Shelby County.
affirmative action cases gained favor.51 Roberts’ majority opinion in Shelby
County selectively highlighted slight evidence to support claims of racial
progress and transcendence. The conclusion that protection is no longer
needed is unsupported by the social science record.52 When viewed in social
and historical context, demonstrably discriminatory (though updated)
methods of disfranchisement of the sort and in the sites that Sections 4 and 5
of the VRA intended to remedy continue to exist.
By presuming racial transcendence, a Post-Civil Rights Court is
transmuting the normative, aspirational race-neutral universalism of
colorblind jurisprudence into a conservative jurisprudence of post racialism.
As Shelby County demonstrates, the presumption of racial transcendence
makes race-neutral universalism appear both descriptive and operational,
and therefore “authorizes the retreat from race” and distancing from the civil
rights remedies provided by the VRA.
51 Id.; “Colorblindness recognizes racial discrimination as a private, individual, or episodic
aberration detached from public or structural explanations. Hence, colorblindness promotes the
reconciliation of the irreconcilable: racists exist as individuals apart from any systemic race
problem,” an ideology that “furthers racial inequality.” Osagie K. Obasogie, Anything but a
Hypocrite: Interactional Musings on Race, Colorblindness, and the Redemption of Strom
Thurmond, 18 YALE J.L & FEMINISM 451, 491-2 (2006).
52 Kimball, supra note 13, at 325.