But they’ll get us to argue about it anyway.

A pending case before the Supreme Court (Callais v. Landry) has court watchers worried that they are on the precipice of gutting the Civil Rights Act entirely after just celebrating its 60th anniversary. This is cause for alarm on its own. But I want to highlight why their primary argument is dumb, but strangely attractive, causing many to treat it as reasonable and a second reason that the Court would rather you forget actually exists.

You might want to know about the case, so I encourage you to read about it, but the substance of the case is almost immaterial because it is unlikely to have any bearing on the Court’s majority opinion. Here’s why:

1. The Court says race can’t be used to decide things.

But politics is just fine.

I get that there is a natural appeal to saying that race shouldn’t be involved in decisions. It sounds like a good thing. But the devil is always in the details. The problem starts with the concepts of always and never.

If we are never allowed to factor in race, and racism is a problem, how then can we solve it? The Supreme Court has offered two responses to this.

One is the John Roberts — That’s for Congress to figure out! (while knowing full well that there is no way to figure it out because they just set up an impossibility by saying never).

The other is the Clarence Thomas — Racism isn’t a problem anymore (which would be an adorable opinion if it weren’t coming from such a smug and sadistic disingenuous and unjust judge).

But the greater problem is quite obvious: why are they singling out race as a never and politics as sure, whatever? Why would the court suggest one can never in any possible case ever be a sound and just reason for making a decision, breaking a tie, or damn, right an historic wrong, but go ahead and discriminate against the disabled, for example? Or LGBTQ+ persons? Or Democrats? Even more, the majority named politics as a valid reason for discrimination in its Shelby decision.

Notice that this isn’t just a problem of hypocrisy. I’m not suggesting that they need to give a never to all the other things. What I hope you see is that their position is actually nonsense.

It is impossible to reject race-based arguments and have a just society.

We see this when the court tries to give special conditions for certain Christian groups to discriminate. They don’t give the majority of Christians the same protections. It has restricted the freedom of speech of children, disability rights, and, as we’re seeing lately, basic due process of anyone. The court gets that we accommodate to make things work.

It just likes picking the ones with power to have more of it.

This is the fundamental problem of always and never. When most of us think race-based profiling is never OK, we’re talking about the bad kind. We’re not talking about the ways legislators would gerrymander a district to dilute the voting power of blacks in Georgia, for example.

Most of us have an intellectual switch that just goes, so we can tell the difference. Yeah, discrimination is always bad. We should do things that actually stop the discrimination.

An aside

This is all so obvious and yet, not, if that makes sense. I suspect that many of us get tangled up in the rhetoric and fall for the language of it. We also fall for the expertise of the Supreme Court. They have to make a logical argument based on the law, right? Actually they don’t. They just have to win a majority and that gives them the power to fake it.

This is why the Court’s previous decision in Shelby was so galling. It isn’t sensible. The Civil Rights Act was built on the real experience of (primarily) Southern racism, which forced CRA violators to get preclearance before changing voting laws. Why? Because they have a history of righting racist laws.

Recognize how sensible this is in general. And in the tangential — like when justice like Clarence Thomas give more power to police when dealing with known offendors.

And yet, to this, the Court, led by Clarence Thomas, argued that racism doesn’t exist and there should be a time limit on these penalties anyway. Besides, punishing these states is the real racism, amirite?

Critics during the hearing for Shelby said that all of the pre-clearance states were planning to change their laws the minute the ruling came down. The Court said, Oh, they wouldn’t do that. Don’t be so reactive.

Every one of those pre-clearance states passed more restrictive voter laws immediately.

Every bit of this was disingenuous political theater intended to distract the public with sensible-sounding politics of the law. What the Court did, however, was it made it easier for states to do racist things while making it harder to define those things as racist. That’s the game.

Which brings us back to reason 2.

2. Racism has always pretended to not be racist.

The things we learned in school about Jim Crow never involved a person saying “I’m a racist.” Nor did they say “I will deny you the right to vote in this election because of the color of your skin.” No, they saw the color of the skin of the person coming to the poll and they gave them a written test they could rig to deny them and the white dude behind them in line got a piece of paper that read “What is 2 + 2?”

Jim Crow was hidden behind fake, legal equality under the law.

Doing racist stuff was never only about the racism. Just like hiring a person is never only about the color of their skin. It isn’t all or nothing. And just like using race as a part of university admissions, which, did not even once force a potential Harvard grad to go to a community college, Jim Crow prevented many from voting, attending school, and owning property in the real world. In real places. Real people.

Notice how linked these two reasons are. How much pretending something isn’t racist is an excuse for racism. Well then, when we outlaw the act of preventing racism, guess what the racists will do? Jim Crow. Because, as the post-reconstruction era courts argued, it isn’t racist if they give everyone a pole test. They’ll find a way to be racist and legal.

This is the Roberts argument today.

Because it isn’t only about race or about voting. It is about how we hide the racism in fake neutrality.

The Court made the same “mistake” nine years ago with its decision about Bob McDonald and corruption. They argued that there needed to be a discernible quid pro quo, so they overturned his conviction primarily because he was actually bad at it.

Corruption, just like racism, is not about the directness of proof, but of the opportunity to exploit one’s power. Under the Court’s current standard, we couldn’t convict anyone of any law intended to curb corruption or racism because racists don’t say “I’m being a racist” on a recorded phone call that can be played in a courtroom. They rig the game to win. And when the court pretends this is fine, they do.

Don’t buy the argument.

That’s the first thing. Don’t buy the argument that this is about making the courts race neutral or that this is sensible law. That the court can outlaw race-based consideration and also offer a just society. As if fairness can exist when the Court keeps picking winners of the powerful.

Don’t buy the argument that this is sensible law. It is the product of extraordinary bias and make believe.

Recognize what it takes to overcome racism: intent. We have to see the way the law itself is manipulated to protect racism and hide racist actions.

This is why the Supreme Court is poised to gut the Civil Rights Act. Because it protects us from the actions. They will try to convince the world that the law makes them do it, that they are helpless, being driven to this decision, rather than the corrupt engineers feeding coal as racists drive the train toward a destination none of us agreed to. And it just happens to look remarkably like the most racist and corrupt era in our nation’s history.