Earlier this year, the Supreme Court held, 6-3, in Ramos v. Louisiana that criminal defendants in state court may be convicted only by a unanimous jury.
The practical impact of Ramos is small — until recently, only two states, Louisiana and Oregon, permitted a non-unanimous jury to convict a defendant. And Louisiana recently amended its constitution to eliminate this practice. But advocates saw in the ruling a big symbolic change in favor of racial justice. As the Court’s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy.
One justice took umbrage with that invocation of racism: Justice Samuel Alito. His dissent was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color. In the most noteworthy of those opinions, 2018’s Abbott v. Perez, Alito convinced a majority of his colleagues to write such a strong presumption of white racial innocence into the law governing racial voter discrimination that it is now virtually impossible for voting rights plaintiffs to prove that state lawmakers acted with racist intent.
Alito does not appear driven by broad skepticism of racial issues. While he has repeatedly lashed out at the mere suggestion that white policymakers may have been motivated by racism, he took a drastically different tone in Ricci v. DeStefano (2009). In that case, Alito wrote a lengthy concurring opinion suggesting that a cohort of mostly white firefighters were denied promotions due to a conspiracy between New Haven Mayor John DeStefano and a local black preacher.
In other words, when black or brown people have been on the receiving end of allegedly racist treatment, Alito preaches that we shouldn’t jump to such conclusions; yet in a case where white people were allegedly harmed, he wasn’t so cautious.
With his Ramos opinion, Alito continues to build a distinctive profile as a jurist: He has emerged as the Court’s foremost defender of white racial innocence.
Alito scolded his fellow Republican justices for pointing to the legacy of racism
Alito sometimes scolds liberals for attributing modern-day policy outcomes to racism. But in Ramos, much of his vitriol was directed at two of his fellow Republican justices. Indeed, the racist origins of non-unanimous juries were discussed prominently in the Court’s lead opinion in Ramos, which was authored by conservative Trump appointee Neil Gorsuch.
In his opinion, Gorsuch offered a brief history of how the practice of allowing non-unanimous juries to decide a defendant’s fate is rooted in white supremacy. The delegates who drafted Louisiana’s 1898 constitution, Gorsuch argues, “sought to undermine African-American participation on juries” by allowing juries to resolve cases in a 10 to 2 verdict (the idea was that only a small number of black jurors were likely to serve on the jury in the first place).
Gorsuch also argues that Oregon’s use of non-unanimous juries “can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”
Gorsuch’s decision to invoke this dark history produced a livid response from Alito. “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts,” Alito writes in the introduction to his dissent. He adds that “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,” and accuses the majority of his colleagues of engaging in such rhetoric.
Alito goes on to make a fair point. Though Louisiana and Oregon may have originally permitted non-unanimous jury verdicts to advance white supremacy, “both States readopted their rules under different circumstances in later years.” Louisiana, for example, originally provided for non-unanimous juries at an 1898 constitutional convention dominated by white supremacists. But the state “adopted a new, narrower rule” at a new constitutional convention in 1974.
Alito suggests that it is unfair to attribute the results of the 1974 convention to racism, if the delegates to that particular convention were not actually motivated by racism. It will be interesting to see whether he applies a similarly forgiving rule in a pending case alleging that provision of Montana’s 1972 constitution is tainted by 19th-century anti-Catholic bias. (It’s also worth noting that liberal Justice Elena Kagan joined most of Alito’s opinion, most likely because Kagan is the Court’s most stalwart defender of the idea that the justices should be reluctant to overrule precedents, and Ramos overruled a 1972 decision.)
But Alito’s Ramos dissent also fits into a broader pattern. In multiple cases, including cases where there is clear evidence that modern-day lawmakers acted with invidious racial intentions, Alito treats the mere suggestion that anti-black or anti-brown racism may still play a role in policymaking with contempt.
Alito’s brand of racial resentment is unique on the Supreme Court
It’s notable that both Gorsuch and Justice Brett Kavanaugh penned opinions in Ramos that acknowledged what Kavanaugh described as “the racist origins of the non-unanimous jury.”
And then there’s the Court’s other white conservative, Chief Justice John Roberts. Roberts’s race opinions are animated by his belief that any legal acknowledgment of race is odious, regardless of whether the purpose of a race-conscious law is to foster white supremacy or to tear it down. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts famously wrote in an opinion arguing that two race-conscious plans to desegregate public schools were unconstitutional.
Roberts’s form of color-blindness is often actively hostile to civil rights laws. Hence his decision in that school segregation case, and his later decision in Shelby County v. Holder (2013), which struck down much of the Voting Rights Act.
And yet, there is daylight between Roberts and Alito. Though Roberts joined Alito’s opinion in Ramos, he did not join Alito’s Ricci concurrence.
And Roberts broke rather sharply with Alito in a recent dispute about whether the Trump administration could add a question to the 2020 census form that would have discouraged many immigrants from participating in the census. Department of Commerce v. New York (2019) involved the Trump administration’s attempt to add a question to the 2020 census form asking whether each respondent is a US citizen.
The idea of adding a citizenship question to the main census form is opposed by prominent census experts in both parties. As top Census officials from the Reagan and Bush I administration warned, adding such a question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.”
The Trump administration made the implausible claim that it added this question to help enforce the Voting Rights Act — a statute this administration has shown little interest in enforcing. But, while the New York case was pending before the Supreme Court, leaked documents revealed that the administration may have had a very different motive. A late Republican strategist, Thomas Hofeller, who urged the Trump administration to include a citizenship question on the 2020 Census form, had determined that such a question would ”clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
In any event, a 5-4 Supreme Court struck down the citizenship question, with Roberts coming very close to accusing the Trump administration of lying. The claim that a citizenship question was needed to enforce the Voting Right Act, Roberts concluded, “rested on a pretextual basis.”
Alito began his dissent with characteristic anger at the idea that anyone would dare accuse the Trump administration of racism. In a preview of the sort of rhetoric he later deployed in his Ramos dissent, Alito wrote that “it is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision” in the opening paragraph of his New York dissent. For Alito, it was fundamentally wrong to attack “the decision to place such a question on the 2020 census questionnaire ... as racist.”
No other justice joined Alito’s dissent.
Alito’s racial views have fundamentally reshaped American voting rights law
Yet, while Alito’s jurisprudence of white racial innocence is distinct, Alito’s views on race still overlap a great deal with his fellow Republican justices. The greatest triumph of Alito’s efforts to write white innocence into the law came in Abbott v. Perez, where Alito wrote the majority opinion.
The facts of Perez are, to say the least, complicated. In 2011, Texas’s Republican-controlled legislature drew congressional maps that, as a federal court eventually determined, included some districts that were illegally racially gerrymandered. These maps never took effect, in large part because a different federal court determined that they violated the Voting Rights Act.
That left Texas in a bind. In early 2012, the state still had no lawful maps that it could use in its upcoming congressional elections, and the state’s primaries for these congressional races were just a few months away.
As a stopgap measure, a federal court in Texas drew interim maps that the state could use in its 2012 elections. Many of the districts in these hastily drawn interim maps closely resembled the racially gerrymandered districts drawn by the Texas legislature in 2011. The court, moreover, emphasized that “this interim map is not a final ruling on the merits of any claims” that some parts of the map were illegal racial gerrymanders.
The court, in other words, would allow Texas to use imperfect maps for one election only, given the risk that Texas would not be able to hold an election otherwise. But the court was also equally clear that it might strike down some of the state’s racially gerrymandered districts at a later date.
Nevertheless, in 2013, the Texas legislature passed a new law ratifying these interim maps as its own — including the districts that were still being challenged as racial gerrymanders. And Alito’s Perez opinion held that this new law reenacting the racial gerrymanders should be upheld.
“The primary question” in Perez, according to Alito, “is whether the Texas court erred when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.”
According to Alito, courts must apply a strong presumption that lawmakers did not act with racist intent — even under the unusual facts that existed in the Perez case. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Alito wrote, “the burden of proof lies with the challenger, not the State.”
Having laid out this standard, Alito then swiftly absolved the Texas legislature of any racial guilt. “The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito wrote in Perez. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”
Alito’s argument, in other words, is that the 2013 maps weren’t enacted to preserve a racial gerrymander; they were enacted to shut down litigation challenging a racial gerrymander. And this distinction is sufficient to cleanse the state legislature of any allegation of racism.
It’s as if the school districts on the losing end of Brown v Board of Education (1954) had passed a new law recreating the same racially segregated schools that were challenged in the Brown litigation, but claimed that these segregated schools should be upheld because the new law had a legitimate purpose — to bring the litigation challenging public school segregation to an end as expeditiously as possible.
Alito sees a racial conspiracy when white people are the alleged victims
The common thread animating Alito’s opinions in Ramos, New York, and Perez is that he views allegations of racial animus with extreme skepticism. Someone who reads these cases in isolation, in other words, could easily conclude that Alito is a particularly strident defender of the sort of color-blindness favored by Chief Justice Roberts.
But then there is Alito’s opinion in Ricci v. DeStefano.
Ricci was a difficult case involving the exam that New Haven, Connecticut used to determine which firefighters would be eligible for promotion to lieutenant or captain. The 2003 exam produced significant racial disparities. As Justice Ruth Bader Ginsburg laid out in her Ricci dissent, “the pass rate for African-American candidates was about one-half the rate for Caucasian candidates” on the lieutenant exam, and the “pass rate for Hispanic candidates was even lower.” On the captain exam, “both African-American and Hispanic candidates passed at about half the rate of their Caucasian counterparts.”
These results led to allegations that the test itself was racially biased, and the city eventually decided to disregard the examinations. After a cohort of firefighters who performed well on the exam sued, the Supreme Court voted 5-4 to reinstate the tests.
Alito joined the majority, but he also wrote a separate concurring opinion suggesting that the city decided to discard the exams, not because of a good-faith concern that the tests’ disparate impact on racial minorities arose from a flaw in the test, but because of a conspiracy involving the mayor and a prominent local black activist. Alito’s concurring opinion describes, at length, the relationship between then-Mayor John DeStefano and the Reverend Boise Kimber, whom Alito described as “a politically powerful New Haven pastor and a self-professed ‘kingmaker.’”
Alito quotes DeStefano’s former campaign manager, who described Kimber as “very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots,” and Alito also claims that “Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor.”
The implication of Alito’s opinion, in other words, is that the tests were scuttled due to a corrupt bargain between the city mayor and a local black activist that DeStefano needed to turn out votes.
Alito’s concurrence hedges a bit. His ultimate conclusion is that “a reasonable jury” could conclude that the city tossed out the exams due to pressure from Kimber. But Alito’s Ricci opinion shows none of the caution — and certainly none of the anger — that Alito musters when someone suggests that a white policymaker might have been motivated by racism against people of color.
Alito raises his allegations of a racially motivated conspiracy, moreover, despite the fact that there is considerable reason to reject this theory of why the city tossed out the tests. Among other things, as Ginsburg points out in her dissent, “the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff.” Rather, “the relevant decision was made by the [New Haven Civil Service Board], an unelected, politically insulated body.”
It is still possible that the Civil Service Board felt pressured to throw out the test by the mayor, and it is equally possible that the mayor acted the way he did due to pressure from Kimber. Ginsburg’s opinion does not reject Alito’s theory outright — though it does express a great deal of skepticism. As mentioned above, Ricci was a tough case. And it’s doubtful we’ll ever know with certainty why the city decided to discard the tests.
But if there were plausible reasons to suspect that invidious racial motives played a role in Ricci, there was far more reason to suspect such motives in Abbott v. Perez. Both cases required judges who were, at the very least, open to the possibility that racial animus tainted the government’s decisions.
Alito is not that judge.