Why the Overturning of Roe Won’t Lead to a Return of Segregation

Why the Overturning of Roe Won’t Lead to a Return of Segregation

Now that the Supreme Court, with its ruling in Dobbs v. Jackson Women’s Health Organization, has struck down Roe v. Wade, many have argued that the court might begin diminishing or doing away with other expansions of constitutional rights. Much of the reaction traces to Justice Clarence Thomas, who in his concurring opinion in Dobbs argued that “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.” It was a shot across the legal bow that prompted James Obergefell, one of the petitioners in Obergefell v. Hodges — the case that guaranteed same-sex couples a constitutional right to marry — to respond, in an interview on CNN last week, that Thomas had “put a target” on “the right to contraception, the right to intimacy with the person you love and the right to marry the person you love,” and “that should terrify everyone in this nation.”

Years before, the court dealt a major blow to the Voting Rights Act of 1965 with its 2013 decision in Shelby County v. Holder, invalidating the statutory formula by which certain jurisdictions had to seek federal preclearance before making changes to voting laws, in order to determine whether those changes curtail voting rights for racial or other minority groups. The day of the court’s decision, Eric Holder, who was then the attorney general, said, “I am deeply disappointed with the Court’s decision in this matter. This decision represents a serious setback for voting rights.”

Whether the court chips away at Griswold v. Connecticut, Lawrence v. Texas or Obergefell remains to be seen — I would lament such a development, but I don’t doubt Thomas means what he says.

Whatever one’s opinion of the Shelby decision, the question of how long to persist with a preclearance regime contained moral and institutional ambiguities. In his majority opinion, Chief Justice John Roberts acknowledged that “voting discrimination still exists; no one doubts that.” Yet, he said, “the question is whether” the Voting Rights Act’s “extraordinary measures, including its disparate treatment of the states, continue to satisfy constitutional requirements.” His question intersects with a larger one: Have some constitutional issues become so settled that almost no one would even consider reopening them? Despite what our somewhat fraught moment might tell us, some have, and it matters.

A good example is the Civil Rights Act of 1964’s proscription of legal segregation in places considered public accommodations, such as hotels.

From a certain point of view, it could be argued that with the Supreme Court’s recent history and current makeup, constitutional rights are on such a slippery slope that anything might be on the table. But the likelihood that the Civil Rights Act would be revisited by the court, or the body politic, in this way is vanishingly small.

To be sure, the slippery slope perspective should be considered, but it tends to be overplayed. And our understanding of the limits of the argument are as important as the argument itself: Everything that could follow in the wake of an initial event, such as the overturning of Roe, probably won’t come to pass. So the question is: What keeps certain things from following? And the answer is one of the ways we learn useful lessons from history.

Though the legal arguments in Dobbs are distinct from one of the act’s core points of contention — what constitutes a public accommodation — at issue in both instances is the notion of states’ rights, which the majority in Dobbs bolstered, but that the act circumscribed. With respect to racial segregation, then, why are we almost certainly not on a post-Dobbs slippery slope?

I may lack imagination, but I don’t fear that the Supreme Court is poised to potentially pave the way for the reinstitution of legalized segregation. Indeed, the idea of knocking down the core premise of the act is difficult to imagine for nearly anyone, regardless of how they might view the court’s current right-leaning majority. That’s because we need not deny that racism still exists to acknowledge that a basic opposition to racial bigotry and de jure segregation has become a part of America’s moral fabric.

To this proposition someone might retort that not long ago, it may have also been difficult to imagine the high court undoing Roe, given how many Americans believe in a woman’s right to choose and the nearly half-century-old decision in that case having been affirmed by the court in its 1992 ruling in Planned Parenthood v. Casey.

But opinions on abortion are less settled in America than those on racism and segregation: In Gallup’s most recent polling on the issue, 55 percent of Americans consider themselves pro-choice. But since 1995 that number has fluctuated, and at various times dipped below 50 percent. In recent decades Americans have been somewhat evenly divided on the pro-choice/pro-life question. There remain a great many Americans of all classes, races and levels of education — including Supreme Court justices — who see abortion as fundamentally immoral.

By contrast, a view favoring or tolerating legal segregation wouldn’t be rooted in as singular a conviction as the one that views abortion as ending a human life, a position that’s exceedingly difficult to alter.

Deep-seated racist bias is also difficult to alter, but the Civil Rights Act of 1964 didn’t outlaw racist bias. Rather, it outlawed barring Black people (or people of any racial or ethnic group) from public accommodations, creating separate facilities for Black people and refusing to hire Black people based on race, whatever one’s biases. A straightforward and relatively easy case to make in our times.

This is especially true given the diminishing proportion of Americans who grew up when legal segregation was not only allowed but considered normal. The justification for segregation, along the lines that Black people are inherently inferior to, and must therefore be kept apart from, white people is one that, as Oscar Hammerstein taught us in the Broadway musical “South Pacific,” “you’ve got to be carefully taught.” But American life teaches that lesson — to hate and fear people different from us — much, much less today than it once did. A society can develop morally, and this is belied neither by how slowly it happens nor by the inevitable existence of holdouts.

Yes, there are those who thought (and some who still think) that in the legal sense, the Civil Rights Act of 1964 was an overreach: In a 1964 Senate floor speech expressing opposition to the act’s passage, Senator Barry Goldwater said, “I am unalterably opposed to discrimination or segregation on the basis of race, color or creed,” but at the same time against a federal “regulatory course of action with regard to private enterprise in the area of so-called ‘public accommodations’ and in the area of employment.” That position was tested that same year in Heart of Atlanta Motel Inc. v. United States, and the Supreme Court found that Congress had acted within the scope of its power when it passed the act and made it unlawful for a motel to discriminate based on race.

I take the risk here — but not much of one — of surmising that the revival of an argument along these lines would not lead the Supreme Court to find differently today. I have no access to the justices’ hearts and souls. However, my strong sense of them, based on my acquaintance with people of their educational level, backgrounds and professional level, is that whatever their opinions about more complex matters such as structural racism and subliminal bias, they would be much less likely to summon a majority vote against the act, and thereby open the door for any sort of resegregation, than their vote to overturn Roe. Desegregation is simply a more settled question.

One reason to reach this conclusion is that it is difficult to assess how many Americans today would approve of reinstituting segregation as a national norm, and the existence of that difficulty is significant: The level of urgency of the question seems so minimal that pollsters would be unlikely to bother asking it. Gallup polling does show that Americans’ views about the state of race relations are mixed. But on a specific issue such as interracial marriage, Americans overwhelmingly approve. Even in 1964, Gallup found that almost 60 percent of Americans approved of the act, and it’s hardly unreasonable to assume that the percentage would be far higher today. Consider also Senator Rand Paul’s criticism of the act, in 2010, which drew widespread condemnation, indicating that his view was an exception, not a bellwether of a common or burgeoning opinion.

I also take the liberty of guessing that if at some near-term point the Supreme Court did knock down the act, very few people or businesses would change their practices. In 2022, overt racism would be too repellent to too many onlookers to qualify as good business, and outright moral revulsion would prevent most captains of industry from openly condoning bigotry. In today’s America, many feel that being accused of racism is almost equivalent to being called a pedophile, so toxic that all along the political spectrum, people take great lengths to avoid it. I’ve heard from two people independently that, among their teenage kids’ circles, “racist” is now used as an all-purpose epithet, unconnected to bigotry, with the assumption being that the term is the handiest way to deliver a smackdown or mark someone as conclusively dismissible. On the other side of the coin, you now hear the phrase “interracial couple” far less than you did years ago, probably because interracial relationships are processed as normal in so much of the country.

Most of the members of the Supreme Court grew up in that country. I suspect that just as personal opposition to abortion likely influenced the conservatives among them to strike down Roe, personal opposition to overt racism would hold them off from attacking the Civil Rights Act of 1964. They just wouldn’t go there — or at least no majority of them would.

Shelby, it’s fair to say, facilitated Republican attempts to discourage minority voters via the imposition of assorted noisome requirements, varying in different jurisdictions, with the end goal of lowering the Democratic tally. This is a revolting kind of pragmatism, which many would designate as racist. But it’s still a different matter from condoning the outright barring of Black people from stores, restaurants and various jobs.

I maintain that the latter simply wouldn’t happen. Not today. Paradise, America certainly is not. But some beliefs become inviolable and progress marches on, of a kind that even this Supreme Court would be unlikely to undo.

Have feedback? Send a note to [email protected].

John McWhorter (@JohnHMcWhorter) is an associate professor of linguistics at Columbia University. He hosts the podcast “Lexicon Valley” and is the author, most recently, of “Woke Racism: How a New Religion Has Betrayed Black America.”

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Last Update: Fri, 08 Jul 22 16:41:05