If Justice Samuel Alito is any indication of movement conservatism, and his life is largely a creation of the movement, then his opinion on the Louisiana non-unanimous jury law indicates why Republicans will never win the minority vote.
It is important to understand that this means that you can never find common cause with these people with issues of race, because they believe that non only is there no racism now, but that there was no racism ever:
Justice Sam Alito just delivered a dissent that could be described as blistering if it wasn’t so cringe-worthy. For six paragraphs, Alito rails against the majority opinion, written by Justice Gorsuch, as a breach of “rational and civil discourse” because it includes a recounting of the history of the laws at issue in the case. But that history requires delving into Ku Klux Klan influence and a public record of racist motivations for the specific laws, and if there’s one thing Justice Alito hates, it’s using ouchy words like “racism” to describe… well, racism.
But in Louisiana and Oregon, 12 Angry Men would have ended with a conviction in about 10 minutes. For years, the two states allowed criminal convictions on the basis of non-unanimous verdicts, a justice system curiosity developed to prevent the occasional black or immigrant juror from interfering with the government’s interest in throwing the book at minority defendants. States that outright refused to seat minority jurors would run afoul of the Constitution, but if those jurors could be seated but ignored… well, the Supreme Court just threw up its hands at a solution so clever!
In any event, the Supreme Court just closed this loophole permanently, holding that the Sixth Amendment by incorporation requires states to convict people unanimously. Justice Gorsuch wrote a fractured opinion that won’t necessarily satisfy scholars but gets the result right.
Justice Sam Alito isn’t pleased to be closing the door on the right of states to perform end-runs around the Constitution. He opens, as previewed at oral argument, with an unironic admonishment of the majority for overturning a precedent from the 1970s. Apparently, precedents that make a mockery of Sixth Amendment rights are sacrosanct while those that impinge on no rights other than a janky First Amendment claim concocted from whole cloth must be overturned with abandon. But it’s his next section aimed directly at Justice Gorsuch where Justice Alito decides to get his inner Justice Taney on.
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. The majority regrettably succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise African Americans.
Now, it’s not clear why Justice Gorsuch suggested that a legacy of racism motivated these laws, but it’s probably because this is entirely and indisputably accurate. Louisiana is, of course, one of those deep South states with a well-known history of institutionalized racial prejudice — at least until Chief Justice Roberts declared racism cured in Shelby County — and the history of this law is no exception with lawmakers going on record to call it critical for “the supremacy of the white race.” Oregon’s a little harder to envision as a state steeped in racist policymaking until you learn that it was founded as a white supremacist haven and actually had a law banning black people until 1926. So, it’s not all craft brews and shrooms over there. With its jury provision, lawmakers called out immigrants as the reason white people needed to be able to convict people without unanimous consent. It’s all around a disturbing legacy.
Make no mistake, Justice Alito’s ill-advised outburst is all about his (along with Chief Justice Roberts, who joined the dissent) desire to purge jurisprudence of a vocabulary to discuss racial animus. It’s why their ideological brethren refuse to admit that segregation was unconstitutional — they balk at the idea that racism can even be a subject in legal discourse. If the committee chair who passed this law saying that it was done to “establish the supremacy of the white race,” — one of the quotes Justice Gorsuch cites that so egregiously rankles Alito — cannot be raised in an opinion, then really what’s left?
This, for Alito, is not “rational or civil discourse” because it offends him. Everyone should really wonder why he’s so offended by calling Jim Crow racist.
Alito and his ilk not only believe that personal racism is a constitutional right, but that racism from the state is a fundamental right as well.
The party of Abraham Lincoln has become the party of Jefferson Davis.