Is the South Still Racist?

By Daniel Henninger, Wall Street Journal - March 7, 2013

At times even a chief justice of the U.S. Supreme Court finds it useful, as the saying goes, to put the hay down where the goats can get it. And so it was last week in oral arguments over a big voting-rights case.

At issue in Shelby County v. Holder was whether some states in the American South, unlike many states in the North, must still submit any change in voting practices to the Justice Department for approval, as required by one section of the Voting Rights Act of 1965. As Justice Ruth Bader Ginsburg noted, the practical enforcement of this provision is mainly directed at Mississippi, Alabama and Louisiana.

After listening to his liberal colleagues argue that Alabama's election practices, as interpreted by various legal formulas four decades after the law's passage, still discriminate against blacks, Chief Justice John Roberts put the hay down in front of Solicitor General Donald Verrilli.

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President Johnson and Martin Luther King Jr. discuss the Voting Rights Act in 1965.

Chief Justice Roberts: General, is it the government's submission that the citizens in the South are more racist than citizens in the North?

General Verrilli: It is not, and I do not know the answer to that, Your Honor. . . .

Chief Justice Roberts: Well, once you said it is not, and you don't know the answer to it?

General Verrilli: I"”it's not our submission. As an objective matter, I don't know the answer to that question.

Shelby County was one of those moments when one wished the Supreme Court allowed its oral arguments to be televised. Some cases are crucial to the nation's sense of itself, and this is one of them. At its center lies Justice Roberts's blunt question: Is the American South irredeemably racist?

The answer should matter for a country that chose to call itself the United States of America and sacrificed much to preserve the idea. The common goal, one may assume, is to be united.

But the answer to that question, as suggested by the comments of the justices last week, reveals about as much as one needs to know about the enduring political divide between what are known in the U.S. as liberals and conservatives. Or for that matter of a reductionist view of America common in Europe, where I was told by a Brit recently that between the U.S.'s two sophisticated coasts, most people are what is known as "rednecks." One need not travel to Europe to hear this.

Justice Sotomayor to the lawyer representing Shelby County, Ala.: "You may be the wrong party bringing this."

Justice Kagan: "Under any formula that Congress could devise, it would capture Alabama."

Justice Sotomayor: "It's a real record as to what Alabama has done to earn its place on the list."

There is no one, Justice Ginsburg said, "who doesn't admit that huge progress has been made." The reason for keeping only the South answerable to federal lawyers, the liberal justices made clear, is that racial discrimination in these states might recur. Justice Breyer analogized the phenomenon of racism in the American South to a plant disease:

"Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. . . . Now it's evolved. . . . But we know one thing: The disease is still there in the state."

If I'm a 40-year-old southerner, born in 1973 and raising a family in one of these states, this view by four justices on the Supreme Court in 2013 of what I might do is insulting and demeaning.

The liberal justices' remarks explain Solicitor General Verrilli's conflicted response to Chief Justice Roberts. He isn't saying the South is more racist than the North, but he doesn't know if it is. Maybe it is, maybe it isn't. But we can't trust them, so they must answer to Washington.

This is an impossible world defined by Alice's Queen of Hearts, and it may be one reason the South today is filled with red states. They stand charged with being the only people in the United States who are potentially racist because they reside in Alabama, Mississippi or Louisiana.

Justice Breyer addressed that directly: "What do you think the Civil War was about? Of course it was directed at treating some states differently than others." In fairness, he then asks if this singling out must persist forever. "What is the standard for when it runs out? Never?"

On the evidence of the comments here, and by other liberal commentators on this case, the answer indeed is "never." Justice Kennedy, the court's great middle man, puckishly noted: "The Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change."

That times change and society can adapt to those changes for the better is an admired habit of the United States. But in the matter at the center of Section 5 of the Voting Rights act"”racism"”some segments of American liberalism won't let it go. In this liberal reading, there can be no forgiveness. Only the possibility of legal retribution. Forever.

Yes, a civil war was fought. It ended in 1865. The Voting Rights Act passed in 1965. Because this is the United States, it is time to move on.

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