The decision in Cruikshank set a pattern that would hold for decades. Despite being dominated by appointees from the party of abolition, the Court gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece. By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.
The justices did not resurrect Dred Scott v. Sandford’s antebellum declaration that a black man had no rights that a white man was bound to respect. Rather, they carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.
The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
Roberts wrote that since the declaration itself was “facially neutral toward religion” and did not discriminate against all Muslims, it did not run afoul of the Constitution. In doing so, he embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.
He lays out that in the Roberts court at least they're not vociferously white supremacist. But the deference to corporate rights, he points out, almost guarantee another generation of increasing wealth disparities in America.
Unless we win all three branches of government and pass an amendment or two. But it'll have to get a lot worse before we do that, if history is any guide.
Update: Longtime reader MB sent this: "At every crossroads on the path that leads to the future, tradition has placed 10,000 men to guard the past."—Maurice Maeterlinck