To understand the real impacts of Louisiana v. Callais’s greenlight of racial gerrymandering, we must first look to our history. Mother Jones journalists Ari Berman and Pema Levy write in a new piece that Chief Justice John Roberts’s plans to degrade Black voting rights were apparent even before his confirmation to the Court.
Berman and Levy join Jen to discuss their recent article, “Whites Only.” They take readers through the civil rights progress made by the Reconstruction Amendments and the Voting Rights Acts of 1965, and ultimately how this progress is unraveled by the Roberts Court. The trio discuss what work must be done to ensure that civil rights are fortified against future attempts to undermine them.
Read Berman and Levy’s article HERE.
Ari Berman is Mother Jones‘ national voting rights correspondent. Pema Levy is a reporter at Mother Jones.
The following transcript has been edited for formatting purposes.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief of the Contrarian. I am delighted to welcome two journalists, both from Mother Jones, Ari Berman, who you have met before, if you have watched these broadcasts, and Pema Levy. They are both authors of an extraordinary piece on the history of voting rights, the history of racial terror in the United States. Welcome to both of you. Thanks for the piece, and thanks for coming on to chat.
Ari Berman
Hi, Jen. Thanks for having us.
Pema Levy
Thank you.
Jen Rubin
Pema, what gave you the idea to go back to really the historic roots of. Jim Crow, the historic roots of the end of Reconstruction, and the beginning of Black Terror, and the exclusion of Blacks from the voting system.
Pema Levy
Well, it was the Callais decision, really, that came out at the end of April. And… The more I read the opinion and thought about the consequences, the more it felt like this would go down in history as a sort of Plessy vs. Ferguson-type opinion. An opinion that is so wrong, because it refuses to acknowledge discrimination and racism, and instead allow it to go forward. And so I went and I went back and I reread Plessy, and I thought, oh my gosh, that’s just the beginning of the parallels here. There are so many parallels with this specific case, you know, in terms of the logic that they used. And then it just so happened that Ari had his own thoughts about the Callais decision. I won’t get too into it, but I wrote a piece just about Plessy. And he said, why don’t we team up? And why don’t we look at some more cases, specifically out of Louisiana, because Callais came out of Louisiana, Plessy came out of Louisiana, and we went back and found that the logic that is… goes from Plessy to Callais actually dates all the way back to the end of the Civil War, and was sort of the culmination of a series of cases that ended Reconstruction and stripped rights from African Americans.
Jen Rubin
And that’s really kind of where your story begins, Ari. We had fought the Civil War. Reconstruction came. There were Black lawmakers from all over the South that we forget how successful in that sense Reconstruction had been. the wheels came off. It came off because of abject violence, and it came off because there were whites that were absolutely committed to using the courts in a very perverse way. And this is what I think is the analogy that… and the… the history that is so fascinating. The use of the 14th and 15th Amendments themselves to deprive Blacks of the franchise. Explain the origins of that, and take us back to some earlier cases in which there was a really devilishly clever idea that we will use these amendments intended to Give Blacks the franchise to take away rights from Blacks.
Ari Berman
Yeah, I mean, Pema can talk more about the specific cases, but just broadly speaking, you’re right, Jen, the Fourth Amendment gave equal citizenship to bBack Americans and the 50th Amendment gave formerly enslaved bBack Americans the right to vote. And that led to this remarkable period of multiracial democracy in the South. during reconstruction in which there were 2000 Black lawmakers elected and things that would’ve been inconceivable, like Black senators and members of Congress elected from places like Louisiana and Mississippi. But then it was undone in part by the courts and in part by the courts turning the 14th and 15th amendments on their head and weaponizing them against those newly enfranchised communities. And basically using equal protection to give more rights to whites and less rights to newly freed Blacks. And we saw the same thing again with the Callais decision and with this broader project by the Roberts Court of turning the reconstruction amendments on their head of weaponizing them, not to protect Black voting rights, but to take them away. And really, to
Aggrieved whites. I don’t know what just happened to my mic. To empower aggrieved whites in the same kind of way that they empowered aggrieved whites 130 years ago. So Pema, I don’t know if you want to elaborate on the cases during this.
Jen Rubin
Please!
Ari Berman
But that was the broad project.
Pema Levy
Yeah, and so… The piece is long, and I hope people do read it, in part because there’s… is fascinating history that I discovered as I wrote it, but I’ll give you one piece of it. There is a character named John Archibald Campbell. He is a Supreme Court Justice. from Alabama, and when the war breaks out, he resigns from the Supreme Court, goes back to Alabama, ends up serving as the Assistant Secretary of War for the Confederacy. And after the war, he sets out to destroy Reconstruction. And he is essentially this evil genius, this incredibly smart lawyer on the wrong side of history, and he says, aha, the 14th Amendment doesn’t mention race. It just, it just says equality. So I’m gonna try to use this to invalidate And discredit biracial government. And he takes that to the Supreme Court. And interestingly, in a very famous case called the Slaughterhouse Cases, which turned out to be an absolute disaster for Black rights, his argument does not actually win. It’s a very complicated case that we do get into in the piece, but he actually loses. And what is so poignant is that what he wanted the court to do, to use the 14th Amendment to Delegitimize. Biracial government, and to liberate white people from having to follow the dictates of a biracial government. That is exactly what they do in Kelly. That is what Alito’s opinion and the majority of the Supreme Court did this year. And it’s… it’s not even that clear from the opinion, because they’re so… a little bit… hiding the ball here. But what they do in that case is they say that using the Voting Rights Act to give representation to Black people. is a violation of white people’s 14th Amendment rights. And so they take the 14th Amendment, and they use it just like Campbell wanted, to Take Black people out of government. And… and then they go even further, and they say, and that also is going to make it much harder to implement the 15th Amendment, which guarantees non-discrimination in voting. So it… they use the… the 14th Amendment to help white people gain power over Black people, and to ensure that the government cannot step in and protect Black people’s voting rights. It is… It is, very sly.
Jen Rubin
It is.
Pema Levy
And it is also very devastating.
Jen Rubin
All right, in the piece, you pardon the pun, judiciously state that John Roberts has been hostile to the Voting Rights Act really his entire career, starting off in the executive branch and then on the court. It’s hard to come away with the impression that it’s not intentional. Do you have a sense that abject racism is operating here? Is it willful ignorance? What do you think is the mindset behind this inclination to automatically assume that any effort to equalize these scales, to live up to the promise of the 14th and 15th Amendment, is racism, and that any action, no matter how blatant, no matter how they give away the ball, the game. on behalf of whites can’t possibly be racism. It’s just politics. What’s the mindset? That’s operating here.
Ari Berman: Well, Jen, I wish I knew, I wish the Chief Justice would, would tell us why he’s been doing this for 40 plus years. In my study of Roberts, he came of age politically at a time when there was a battle. backlash to the civil rights movement in conservative legal circles. His mentor, in many ways, was Chief Justice William Rehnquist, who basically said that Brown v. Board of Education was wrongly decided, and had personally tried to administer literacy tests to Black and Latino voters when he worked as a Republican Party official in Phoenix, Arizona. And so I think Roberts came up at a time when things that would have previously been discredited were back in vogue. And the idea was that the remedies for the civil rights movement, whether it was affirmative action or busing or drawing majority minority districts, were as bad as the original sin of segregation, Jim Crow and racism. And I think that deeply influenced Roberts. And he came to view the Voting Rights Act. I don’t know if he ever believed it was. justified, but somehow or another, I think he came to view that the solution was as bad as the original sin. And so he worked tirelessly to weaken the Voting Rights Act. And it’s interesting, if you go back and look at his confirmation hearings in 2005, the likes of John Lewis testify against him, and they say, this guy’s had it out for the Voting Rights Act his entire life. life. He’s going to gut the Voting Rights Act if he gets on the high court. And that was ignored. And Robert said, I don’t have any problem with the constitutionality of the Voting Rights Act. And he made it seem like he was just this judge who was going to call balls and strikes. And it very quickly became apparent that this was going to be his signature project, and not just rolling back the Voting Rights Act, but rolling back the civil rights laws of the 1960s more broadly. I think that has been. The overriding project of the Roberts Court. I think they’ve been, as Pema said, sly about it. They want to avoid the headlines that say “Supreme Court ends Voting Rights Act,” even though that.
Jen Rubin
Yes.
Ari Berman
Functionally done and they, they want to make it more complicated legalese and the way Pema described it, which is that they are using the 14th Amendment to help white people and hurt black people, that’s not how a lot of the court’s coverage is, is described. It’s part of the problem with the Supreme Court is that people don’t call it out in the way.
Jen Rubin
Yes.
Ari Berman
That people like Pema are doing, which is we should just call out straight up what they’re doing that that doesn’t matter what their intention is. If what they’re doing is racist, furthers racism, not only furthers racism, but goes back 130 years in terms of the tools it used to further racism, that should be stated very clearly and plainly.
Jen Rubin
Absolutely. Pema, one of the things you do is give a sense of the impact that this is going to have. 140 Black legislators are probably at various levels, probably going to be kind of wiped out of office. What’s the future? And how do courts, how do lawmakers. turn this around. Do we need new constitutional amendments, in your view? Do we just need new judges? Do we need to listen to the three dissenting judges who are very much, as Ari says, very often. calling out, particularly Justice Jackson, who routinely says, you know what? You’re misstating the history here. That’s really not what the 14th and 15th Amendment were up to. What’s your view in terms of how we get back to the original view, the original intent of these post-Civil War amendments?
Pema Levy
It’s a really good question, and I actually… I don’t think there’s one answer, and I’m gonna try to be not too nerdy about this, which I do like.
Jen Rubin
Nerdy, it’s okay. We’re a place for nerds here.
Pema Levy
Thank you. So, I think… there are… there are all of the things you said are, in theory, options. I think the most difficult one is a constitutional amendment, right? Because that process requires Three quarters of the state. The legislature, I mean, that is the really heavy lift. Much easier lift is new judges, right? You know, there’s, I think, a growing movement right now to add judges to the Supreme Court, and… then you could just bring up another case, and that court could say, Callais was wrong, it’s overturned. They could even say Shelby County was wrong, right? They can do whatever they want. And then the final thing I would say, and this is something that is… slowly gathering momentum in academic circles and among journalists, and I think May, ultimately, come to Congress as well. Which is… There’s a growing number of people who are going back in history, going back and looking at the role of the Supreme Court, not just, you know, in the Constitution and in the first 70 years of the country. And saying. wait a minute, the Supreme Court is not supposed to be allowed to invalidate acts of a legislature, right? And when you think about this. It is a little bit crazy to say the entire country comes together and elects a Congress to represent them, and then five unelected judges can veto. what… what they do, and that is what has happened with the Voting Rights Act, right? It has been overwhelmingly passed and reauthorized by Congress again and again, and, you know, 5 to 6 justices have whittled it down to almost nothing. So, I do think that there is a third option, you know, you don’t know the outcome of it exactly, which is for Congress to pass another Voting Rights Act and say, no, we meant it. And we get to decide what the 14th Amendment means, and we get to decide what the 15th Amendment means, and dare the court to once again knock them down. Now, I actually think the Roberts Court might indeed do that, but, you know, their power comes from Public faith in them, right?
Jen Rubin
Yes.
Pema Levy
And so I do think there is a battle for the public support. between Congress and the court, and if Congress wins that battle, then I don’t think they need constitutional amendments. I think that they… they can simply say, this is actually our job, and you cannot take that away from us.
Ari Berman: Jennifer, I can’t.
Jen Rubin
Yeah.
Ari Berman
To that, that I think is an important solution. More organizing and investment in the South. Because for many years, the way to protect voting rights in the South was through the courts, and that’s not really an option anymore. And so these Black legislators that are seeing their districts taken out away from them. They need a lot more help, and there has to be some kind of political backlash here. Like we saw, for example, when South Carolina was going to do this and eliminate Jim Clyburn’s seat, like we saw when Georgia was going to do this before the election. And even Republicans said, let’s not do it now. We’re going to pay a political price if we do this. And my worry is that after the midterms. Republicans are to come back in all of these southern states, and they may come back in some of these southern states looking at new Democratic victories or looking at some places they thought they were going to win with redistricting, they didn’t win because of a blue wave, and they say, now we know exactly the places we need to target. We’re going to do it more surgically, and there’s not going to be a midterm environment. People aren’t going to be paying attention, and that’s where we’re going to redraw all of these districts again, and that’s where they’re specifically going to go. After more Black members of Congress and not just. members of Congress, but the local level. That is arguably.
Jen Rubin
Yes.
Ari Berman
Where the Voting Rights Act has had the biggest impact, the state legislative level, city councils, county commissions, mayors, the places where people are closest to the public, that’s where they could get rid of those offices as well. And so there’s gonna have to be a lot more organizing and investment in the South. counteract that. And it’s not just going to be something that you can fight through the courts in the traditional kind of way.
Jen Rubin
Well, you were speaking to the person who wrote a piece today that the courts will not save us. I saw.
Ari Berman
And I teed you up.
Jen Rubin
That is the argument that courts are defensive in many respects. They have slowed down the process, but ultimately these are issues of politics and political will. What kind of country do we want to have? What kind of values do we want to have? And to Pema’s point. The 14th Amendment actually gives Congress the power to implement the 14th Amendment. They’re supposed to be the ones who figure it out, not the courts. So it’s, a matter of returning to that original meaning. Let me… I end with this. Pema, you begin the piece looking at some specific African-American lawmakers, ones who have lost their seats in the past. Who have now become advocates. What keeps people going in this fight? It’s very easy to look at this. circular journey we’ve been on, that we’re almost back to where we were 150 years ago. What did you glean from talking to some of these African American lawmakers in terms of the tenacity And really, the faith in this country that this is somehow worth it, that they can endure and preserve the ideals of American democracy.
Pema Levy
Yeah, I will answer… I will answer that the best I can, and then I want Ari to have the last word, as he is the one who spoke, with Rep. Cleo Fields. I, I think… Okay. I’m just… I’m just gonna say this. I think that… On some level, there’s a privilege in being white, and feeling like things have just collapsed all around, and that they’re back to the way they were. But they’re not. You know? Like, they actually are not. And so I think if you come out of a tradition of not just knowing about Jim Crow and about slavery, but knowing that that is in your family’s history, and that it has affected you, you know how far you’ve come. And that even though these setbacks are huge. They are not literally segregation, right? They are not literally slavery. Like, we are taking a step backwards, but we are not taking steps all the way backwards. And I also think… hope is resistance, right? And I think that that is a lesson that communities that have been discriminated against and oppressed for so much, they know that if they feel that defeat, if they accept that defeat. that is how the defeat wins, right? And so I really do think that, you know, it is a really beautiful thing to have that sort of joyful resistance. You know, because that is… that is exactly what… what moves us further along in terms of progress, but I would love to hear Ari speak, you know, specifically to his conversations.
Jen Rubin
Ari, could you be the last.
Ari Berman
Sure, that was really well said. Pema, I mean, one of the main characters in the piece is Representative Cleo Fields from Baton Rouge. He has a remarkable life story. He has now been gerrymandered out of office twice. He was elected in 1992 at just 30 years old, part of a number of new Black members of Congress. His district was eliminated two terms later. By the Supreme Court as a racial gerrymander, he comes back to Congress 30 years later, takes back what is essentially his old seat, and then once again is driven out of office by the Supreme Court. So I mean that is a remarkable story to have lived through this period twice and basically he said, I’ve never served a single day in Congress without a federal lawsuit hanging over my head. So I can only imagine. how it feels. He’s going back to the state Senate. He served a few terms there before, so he’s going to try to work at the local level in Louisiana. One of the fascinating dynamics to me, Jen, and I know you’re tracking this as well, is there could be a backlash. To this decision, I don’t think that we should count on every time the Supreme Court does something bad, the people that are most affected by it have to mobilize even harder, but I do think there was a real level of outrage, and I do think this really broke through, and I’ve seen the greatest amount of outrage to this decision since the Dobbs decision in terms of really catalyzing people and really People feeling, I need to do something. And so that might be trying to save some of these seats. They try to gerrymander. It may be trying to deal with statewide races, that they can’t gerrymander. Or it may be trying to build longer-term political power, and to rebuild Black power at all levels. But I do feel like Other than feeling helpless, people have actually felt motivated and they’ve been. motivated by their anger and by their rage to actually do something. And that’s why I am hopeful, and like Pema said, I do think that hope can be an act of resistance in this cycle, because I do think in all of these southern states, people are really yearning to do something to try to counteract this decision.
Jen Rubin
And that’s, folks, why you see that some of these re-redistricted decisions, and districts that Ari has talked about, that I’ve talked about, are now potentially going to go Democrats away. They thought they could re-redistrict their way into power, may not work out that way. You also have a bunch of Senate seats. Remember, states cannot be gerrymandered, that are in play, including places like Mississippi. The Arkansas Senate race is within a couple points, so it doesn’t cure everything. But voting cures a lot of things, and mobilization cures a lot of things. I want to thank you both for an extraordinary piece. I thought I knew a lot about voting rights. I learned a ton. Reminded me a lot about the arc of these decisions, and the damage this Supreme Court has done, so I commend it to all of you. Please pick up a copy of Mother Jones, read it. It’s a wonderful piece. Thank you both for writing it, and thank you both for coming and spending time with us. We really appreciate it.
Ari Berman
Thanks so much, Jen.
Pema Levy
Thank you so much, this is fun.
