More than just potentially fundamentally reshaping reapportionment jurisprudence, the U.S. Supreme Court’s decision in Louisiana v. Callais may signal that, finally after five tortuous years, peak woke has been jettisoned sufficiently from public policy-making.
Understand that what oozed into larger society during the Wuhan coronavirus pandemic had incubated for decades, even more than a century, in academia. What we now call “woke,” or coming to understand the faith that America is systemically and irredeemably racist to the point that, as one of its leading exponents phrased it, “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination” – in other words, as allegedly subconscious racism against blacks was inevitable despite a stated conscious desire not to be prejudiced against blacks, thus policy had to favor deliberately blacks at the expense of the majority’ supposed oppressiveness, is nothing more than a mutilated Marxism where race replaces class, with both versions equally discredited by the data.
The pandemic allowed government to vastly expand its powers playing upon people’s fears and prejudices during the last year of Republican Pres. Donald Trump’s first term, effectively neutering his agenda as well as setting him up for defeat, then with Democrat former Pres. Joe Biden following in office and courtesy of his rapidly diminishing capacities letting the far left run amok in both policy-making and in pressuring society to follow it. Like an opportunistic disease neo-racism posing as anti-racism metastasized into the nation’s bloodstream.
Reeducation sessions told the white devils they were the problem, even if they didn’t think they were, unless they recanted and pledged to follow a party line. Police and some prosecutors became criminalized as racist because blacks were arrested and imprisoned at rates far above their proportion in the population, with any use of force by police against a black automatically suspect. Concepts such as meritocracy became defined as racist merely because blacks were underrepresented in higher status and higher income stations in life. If you weren’t for the regime of new thinking, you were considered against it.
It was the ultimate unmasking of this virus of the mind that had lain dormant after infecting academia, and it mutated a related area of policy: reapportionment of plenary institution districts. As the wokeism preached that equal opportunity was chimerical unless accompanied by equity in outcomes, the jurisprudence addressing reapportionment, shaped some 40 years and more ago, articulated that very relationship.
Some six decades ago, that was a valid description of the world as it was. Southern jurisdictions, but a few others elsewhere as well, in fact did try to rig things – not just in elections but other institutions did as well – to keep blacks from advancing political and other agendas. In that environment, it made sense to force outcomes discriminating for blacks, because the processes themselves, reapportionment included, had rules that so blatantly discriminated against them.
But now the situation completely has changed unless you still posit rampant racism exists because there are unequal outcomes by race along certain dimensions – wealth, income, education, election winners – and discount far more evidence-based hypotheses that differences exist because of other intertwined factors, such as cultural, products of transfer payments policy, victimization mentalities urged by certain black leaders, and others. Despite that sea change in laws dealing with black participation in the electoral process and others that severely limit the ability of government and institutions outside of government to discriminate against blacks, one area that has yet to change is that root assumption behind reapportionment.
As of now, the Voting Rights Act as amended and judged still propagates the ideology that unequal outcomes, defined as the proportion of elected plenary officials that are black not being roughly congruent to and lower than the proportion of blacks in the population represented by the plenary body (legislature, city council, police jury, school board, etc.), are a sign of racist intent unless very specific exculpatory circumstances are proven. What Callais offers is a path towards redefining the jurisprudence so that the initial assumption begins from recognizing that unequal outcomes are not automatically racist in intent but that such intent must be demonstrated extant as a unique phenomenon separate from, for example, partisanship as a motive.
Of course, for political or other reasons, some on the Supreme Court unwilling to revise the intent/outcome relationship in reapportionment jurisprudence to align with the times seek to prevent this reevaluation. In particular, Assoc. Justice Ketanji Brown Jackson displayed an unusually half-baked, if not anti-intellectual, response in her Callais argumentation.
In defense of an approach that builds districts primarily, if not exclusively, on the basis of race to buttress the lingering outcome=intent assumption, Brown brought up the Americans with Disabilities Act, which essentially states that if it’s not too costly and inconvenient then public accommodations, including those provided by government. She equated the worldview behind that as “remedial action, absent discriminatory intent, is really not a new idea in civil rights laws. And my paradigmatic example of this is something like the ADA.”
The world then, she said, “was discriminatory, in effect, because these [disabled] folks were not able to access these buildings — and [it] didn't matter whether the person who built the building, or the person who owned the building, intended for them to be exclusionary. That's irrelevant.” The current interpretation, “is responding to current-day manifestations of past and present decisions that disadvantaged minorities,” and to “make it so they now have equal access to the voting system, right? They're disabled.”
The sheer poverty (and insult to blacks) of this argument is breathtaking, an entirely apples to oranges comparison. Requiring ramp access bypassing steps eliminates the undeniable and physically-determined reason those whose mobility is impaired cannot enter or exit a building. By contrast, Brown blithely assumes a continuing systemic and endemic discrimination that the data simply don’t verify and where rival explanations for the associated outcomes have more evidence backing them.
This ignorant view slowly but surely over the past couple of years has been diminishing in influence, hastened by Trump Administration efforts to repeal regulations built on the lie and choking off funds trying to back spending reflecting it. Now the Court has a chance to evict the wokeism that evolved into reapportionment jurisprudence from the law, and should it do so confirms that, finally, America at a significant level and to a significant degree has washed this toxin out of the country’s system
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