Faulty reasoning signals

• Confirmation Bias - 15.3% (184 hits)
• Anchoring Bias - 0%
• Availability Heuristic - 10.3% (124 hits)
• Representativeness Heuristic - 2.4% (29 hits)
• Hindsight Bias - 7.4% (89 hits)
• Overconfidence Bias - 2.2% (26 hits)
• Framing Effect - 0.7% (9 hits)
• Loss Aversion - 0%
• Status Quo Bias - 0%
• Sunk Cost Effect - 0%
• Optimism Bias - 0%
• Pessimism Bias - 2.7% (32 hits)

Article text

The Roberts court is leading America backward on race.

Over a century ago, when the Supreme Court helped usher in Jim Crow, Justice John Marshall Harlan took his colleagues to task for betraying the promise of Reconstruction.

Dissenting in *Plessy v.

Ferguson*, Harlan insisted that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.

There is no caste here.

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

In the Supreme Court term that just ended, the Roberts court turned Harlan’s anti-caste reading on its head.

This court read the 14^th Amendment, time and again, as the justification to lock in racial subordination and to immunize bias and prejudice from scrutiny.

A big part of the story of the term that just ended is that this conservative supermajority will give the Reconstruction Amendments the stingiest reading possible.

Ignoring the 15^th Amendment’s race-conscious insistence that communities of color need equal voting rights, *Callais*’ crabbed interpretation opens the door to a return to one facet of Jim Crow America: state efforts to wipe away Black representation through a toxic blend of partisan and racial gerrymandering.

The ruling even bars Congress from using the 15^th Amendment to achieve its purpose of ensuring an inclusive multiracial democracy.

In other words, *Callais* turns the 14^th and 15^th amendments on their heads, misreading those transformative documents into a new way to safeguard the power of states to subjugate communities of color.

As shown by post-*Callais* developments over the past two months, the ruling’s blast radius will be far and wide.

The court’s post-*Callais* shadow-docket rulings, particularly *Allen v.

Milligan*, when the conservative supermajority rejected a three-judge court’s unanimous finding of discriminatory intent, suggest a high court racing to impose a maximalist reading of *Callais* as fast as it can.

At the same time that it has annulled the Voting Rights Act as too race-conscious, the court’s conservative wing has gone out of its way to greenlight racist government action, most recently in *Mullin v.

Doe*.

There, the Roberts court, once again by a 6–3 vote, rejected challenges to the Trump administration’s termination of temporary protected status for immigrants from Haiti and Syria, willfully ignoring anti-Haitian diatribes uttered by President Donald Trump.

As Justice Elena Kagan’s dissent spelled out, the record was chock-full of racist anti-Haitian animus and prejudice.

Trump called Haiti a “shithole country,” insisted that allowing Haitian people into the U.S. was “a death wish for our country” and was “poisoning our country,” to name just a few examples.

Justice Samuel Alito’s majority opinion, which conveniently omitted these rants, found no equal protection violation, insisting that the president’s statements were not “overtly racial” and “expressed policy views that could rest on race-neutral justifications.”

*Mullin* illustrates a conservative supermajority that is willing to label nearly any form of state action targeting communities of color as race-neutral.

The equal protection clause was written to provide a powerful weapon against entrenched prejudice.

But in the hands of the Roberts court, it more often than not immunizes prejudice.

The conservative wing’s obsessive focus on and chintzy view of intentional discrimination have no basis in constitutional text and history.

Further, the Roberts court’s shadow-docket rulings—increasingly occupying an oversized part of the justices’ work—provide additional examples of the ways in which equal protection no longer protects.

Last fall, in *Noem v.

Vasquez Perdomo*, the Republican-appointed supermajority paused a lower-court injunction preventing Immigration and Customs Enforcement agents from engaging in racial profiling.

That order contained no reasoning, but even Justice Brett Kavanaugh, the sole member of the majority to seek to justify the move, saw no constitutional problem with the use of “apparent ethnicity” as one factor supporting an immigration stop, sanctioning systematic racial profiling.

In *Allen*, the post-*Callais* case concerning Alabama’s effort to undo Black representation, and in an early Texas districting case, *Abbott v.

LULAC*, the conservative supermajority also paused lower-court rulings, insisting that these courts had erred in finding racial discrimination.

Both cases insisted that the courts should have assumed good faith on the part of the state legislature.

A through line in this term’s cases is the conservative justices’ effort to make intentional racial discrimination impossible to prove.

The court read equal protection to permit discrimination against marginalized persons in other contexts too.

In *West Virginia v.

B.P.J.*, yet another 6–3 ruling, the conservative supermajority refused to apply equal protection to safeguard the rights of transgender people, employing instead a watered-down form of judicial scrutiny to uphold state legislation that excluded from participation in sports all trans women and girls, even those who possess no biological advantage.

The 14^th Amendment’s universal promise of equality was designed to end prejudicial exclusions of marginalized persons, ensuring equal citizenship stature for all, but *B.P.J.* wrongly suggests that courts should defer to legislatures, even when they deny transgender people rights to participate that others take for granted.

Even cases that were expected to be lopsided wins, such as *Trump v.

Barbara*, the challenge to Trump’s frontal assault on birthright citizenship, closely divided the justices.

Chief Justice John Roberts’ majority opinion spelled out why the president’s anti-birthright executive order flouted the text and history of the 14^th Amendment.

But only one other conservative justice, Amy Coney Barrett, joined him.

Shockingly, the other four conservative justices refused to accept the overwhelming text and history supporting the constitutional guarantee of birthright citizenship for everyone born in the United States, regardless of the status of their parents.

To do this, the justices resorted to made-up suppositions or cherry-picking the historical record to read birthright citizenship out of the 14^th Amendment.

This means that with the Roberts court, even the most foundational guarantees of the Reconstruction Amendments remain insecure.

The constitutional vision of the conservative supermajority represents, in many respects, a return to the ideals championed by white politicians who fought tooth and nail against the Second Founding, willfully ignoring racial oppression against formerly enslaved Black Americans while also denouncing federal civil rights legislation seeking to guarantee racial equality and multiracial democracy.

To a striking degree, the positions staked out by the court’s conservative supermajority echo the opponents of the 13^th, 14^th, and 15^th amendments back when these amendments were passed.

But these views deserve no weight in interpreting the amendments’ transformative guarantees.

As Justice Ketanji Brown Jackson underscores in a masterful concurring opinion in *Barbara*, Black Americans and their allies in Congress were the ones who fought to revolutionize the Constitution “to bring their own antisubordination vision to fruition.”

Paying heed to text and history requires an inclusive constitutionalism that centers their views.

The attack on the Second Founding for what it is helps expose the lie that this is an originalist court that follows text and history where it leads.

To the contrary, this term revealed a Supreme Court repeatedly adopting readings of the 14^th and 15^th amendments that reject the essential premises of those amendments and read them to lock in subordination and domination of historically marginalized communities.

The Roberts court will go down in history for its many rulings hollowing out the amendments that were adopted to make our Constitution more free, more equal, and more democratic.