Those six conservative justices might as well have stood in front of the court and set fire to the 1964 Civil Rights Act, which outlawed segregation and discrimination based on race, religion, sex, or national origin in a wide variety of venues and actions, including public accommodations, education, the provision of government services, housing, transportation, and voting. The Civil Rights Act outlawed exactly the kind of racial profiling now being practiced—and permitted by our highest court—in the Trump administration’s war on immigrants.
While they were at it, those six robed arsonists might as well have burnt the Constitution’s Fourth Amendment, which outlaws unreasonable searches and seizures and requires a court-issued warrant for arrests. They could have added the 14th Amendment to their bonfire, which was one of three passed and ratified during the Reconstruction period following the Civil War. Those three amendments established full citizenship rights for emancipated Blacks and future generations of US denizens, regardless of race. The 13th Amendment, of course, outlawed slavery, and the 15th secured voting rights for all (male) citizens regardless of race, color, or previous conditions of servitude. The 14th Amendment, while establishing birthright citizenship, also guarantees “all persons” (regardless of citizenship status) due process under the law—including those suspected of being in the country illegally.
Centuries of Struggle Undone
No one gave us those rights. Successive generations of Americans fought for them, starting in the late 1780s and in the 1791 passage of the Bill of Rights, the first 10 amendments to our Constitution. That’s when the Fourth Amendment established the rights that centuries later would be invoked to prevent people from being stopped for “driving while Black” or seeking work while looking Latino. (It’s also when, thanks to the First Amendment, we secured freedom of speech and the press, which gives me the right to state publicly, even in the wake of his despicable assassination, that the founder of Turning Point USA, Charlie Kirk, built his organization on explicit contempt for women, especially women of color, and LGBTQ people.)
It took a civil war and the deaths of almost 700,000 soldiers on both sides to end legal slavery in this country and give us those three Reconstruction amendments, passed between 1865 and 1870.
As we’ve seen repeatedly, the hard-won legal remedies for racism are now being turned against both the historic and present-day targets of racism.
And it took decades of mostly nonviolent struggle and sacrifice (and more deaths) to win passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act. Those two laws essentially reiterated the same rights that had been secured back in the 1860s but had been denied in practice in the Southern states of the former Confederacy. “Denial” is a weak word for the life-destroying discrimination and segregation that was then systematically enforced by state-sponsored terrorism (all too often in the form of lynching) against those accused of violating the Jim Crow regime of that era.
The Supreme Court had already torn the guts out of the Voting Rights Act in 2013, deciding in Shelby County v. Holder that states with a history of race-based voter suppression would no longer have to seek “preclearance” from the Department of Justice for changes to their voting procedures. The court’s argument was essentially that voting discrimination no longer exists in the states named in the 1965 Voting Rights Act. Justice Ruth Bader Ginsburg dissented, observing that ending preclearance was like “throwing away your umbrella in a rainstorm because you are not getting wet.”
The fact that a storm of suppression was indeed still raging became clear almost immediately, as affected states began passing laws making it more difficult for people of color to vote. Ironically, US President Donald Trump’s crew hasn’t yet completely purged the Department of Justice’s website of support for voting rights. You can, for instance, still find there a 2023 blog post by Assistant Attorney General Kristen Clarke lamenting the depredations of Shelby and praising the Biden administration’s support for the—never passed—John Lewis Voting Rights Advancement Act as a remedy.
Now, in a one-paragraph decision, the six right-wing justices, appointed by a series of Republican presidents including Trump, have made another contribution to his administration’s all-out attack on race and gender equality. Justice Brett Kavanaugh found it necessary to amplify the court’s decision in a lengthy concurrence. In words untethered from the real world, he wrote:
The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. If the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go.”
Let me repeat that: “If the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go.” Tell that to Kilmar Abrego García.
In the last few decades, some very bad ideas have come out of my own state, California. This may surprise readers who think of Californians as living in a great blue expanse on the country’s “Left Coast.” They may think our governor, Gavin Newsom, is an avatar of liberalism. (Despite my criticisms of the man, I will admit that his recent trolling of Donald Trump’s ALL-CAPS MEDIA STYLE is pretty funny.)
Nevertheless, some seriously bad ideas have triumphed as ballot propositions here. In 1978, there was Proposition 13, which made it all but impossible to raise taxes in the state—especially property taxes, which provide almost half the funding for our public schools. That “taxpayer revolt” (as it came to be known) spread rapidly to other states. Then, in 1994, Republican Gov. Pete Wilson transformed his flagging reelection campaign by inflaming white anxiety about immigration in California. He launched a series of TV ads with the tag line “they keep coming,” a reference to people crossing the Mexican border looking for work in my state. Weaponizing white anxiety was something Donald Trump would borrow when he ran for president in 2016, 2020, and 2024.
To ramp up his 1994 gubernatorial campaign, Wilson endorsed the anti-immigrant Proposition 187, or “Save Our State” initiative. And Californians then indeed did reelect him, while passing the proposition, which outlawed the provision of any government services—including healthcare and education—to any undocumented immigrant. Government employees at any level were required to report anyone (including schoolchildren) they suspected of being in the country illegally. In language forebodingly similar to the rhetoric of both of Trump’s presidential campaigns and his two administrations, Proposition 187 began:
The People of California find and declare as follows:
That they have suffered and are suffering economic hardship caused by the presence of illegal aliens in this state. That they have suffered and are suffering personal injury and damage caused by the criminal conduct of illegal aliens in this state. That they have a right to the protection of their government from any person or persons entering this country unlawfully.
What happens in California doesn’t always stay in California. As the Washington Post reported 25 years later, “Since 1994, 65 initiatives and referendums to change state immigration laws were attempted via direct democracy mechanisms.”
Almost immediately, federal courts prevented the implementation of most parts of Proposition 187. Three decades later, however, the Supreme Court has effectively validated Proposition 187’s premise, permitting the use of racial profiling to identify possible “illegal aliens.”
The right wing wasn’t done with legislating racism in my state. In 1996, Proposition 209, also known by the (completely unironic) ironic title its proponents gave it, the “California Civil Rights Initiative,” outlawed affirmative action at any level of government in the state, including access to public colleges and universities.
Though it faced legal challenges, Proposition 209 remains in force today. There’s no doubt that earlier Supreme Court decisions, including the 1978 finding in University of California v. Bakke, had indeed laid the groundwork for it. In it, a 30-year-old white man had challenged his rejection by the medical school at the University of California, Davis. He sued and was eventually admitted. In his case, the court upheld the principle of affirmative action to address racial or other discrimination against protected classes of persons, but outlawed specific numerical quotas.
By 2023, however, an ever more right-leaning Supreme Court had ruled in Students for Fair Admissions v. Harvard that affirmative action violates the equal protections guaranteed by the 14th Amendment. As we’ve seen repeatedly, the hard-won legal remedies for racism are now being turned against both the historic and present-day targets of racism.
Then, in 1998, another ballot initiative outlawed most bilingual education in California public schools (though it was finally repealed at the ballot box in 2016).
Disparate Impact
By 2003, however, in part because of changes to the demographic makeup of the electorate, California voters had had enough of legally weaponizing white anxiety. They roundly rejected Proposition 54, known as the “Racial Privacy Initiative,” which, as the American Civil Liberties Union of Northern California put it, “would have banned most agencies from collecting data on race, ethnicity, and national origin, with disastrous consequences for health, education, public safety, and civil rights.”
But in the Heritage Foundation’s Project 2025, the right-wing strategists for a second Trump presidency made it very clear that their plans included implementing a national version of the Racial Privacy Initiative. The author of the section on labor advocated prohibiting the Equal Employment Opportunity Commission, or EEOC, from collecting employment data based on race. The mere existence of such data, he wrote, “can then be used to support a charge of discrimination under a disparate impact theory. This could lead to racial quotas to remedy alleged race discrimination.” In other words, if you can’t demonstrate racial discrimination in employment (because you’re enjoined from collecting data on the subject), then there’s no racial discrimination to remedy. Case closed, right?
I used to suggest to my philosophy students that you could view the last 2,000 years of “Western” history as a gradual widening of the circle of beings who count as full persons.
It seems that Donald Trump agrees. In April 2025, he issued an executive order entitled “Restoring Equality of Opportunity and Meritocracy.” In it, he noted that “disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.” Trump and his handlers don’t see taking systemic racism and contemporary bias into consideration as a solution to a problem. Such consideration is the problem. “It not only undermines our national values,” says the order, “but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”
Whatever Trump may decree, current employment law (as implied in the 1964 Civil Rights Act, affirmed in 1970 by the Supreme Court in Griggs v. Duke Power Co., and codified in the 1991 Civil Rights Act passed under the presidency of George H.W. Bush) supports the use of disparate impact. As of now, plaintiffs can still seek to prove discrimination by demonstrating the disparate impact of a company’s “facially neutral” hiring, firing, or promotion policies. How long will it be, however, before this Supreme Court reverses decades of progress in equal employment?
We’ve already seen the “disparate impact” of Trump and his Department of Government Efficiency’s destruction of the federal workforce, which has disproportionately affected Blacks, and especially Black women. It’s a major factor explaining why 300,000 Black women have lost jobs since Trump took office.
If you have any doubt whether race (and sex) bias continues to exist at the highest levels in this administration, consider the words of a man Trump thought of as “sort of like a son,” the recently assassinated right-wing firebrand Charlie Kirk:
If I see a Black pilot, I’m going to be like, boy, I hope he’s qualified.
If I’m dealing with somebody in customer service who’s a moronic Black woman, I wonder is she there because of her excellence, or is she there because of affirmative action?
And about a list of prominent Black women, including Supreme Court Justice Ketanji Brown Jackson, Kirk said: “You do not have the brain processing power to otherwise be taken really seriously. You had to go steal a white person’s slot to go be taken somewhat seriously.”
Circling Backwards?
I used to suggest to my philosophy students that you could view the last 2,000 years of “Western” history as a gradual widening of the circle of beings who count as full persons. At first, that circle contained only high-born men. Centuries of struggle saw the inclusion of men without noble birth, and later without property. Racial concepts, themselves a human invention, long excluded men who were not deemed white. Eventually, fitfully, they, too, were admitted to the circle of personhood. Most recently, women seem to have become persons, and with that addition, people of a variety of genders and sexual orientations have also joined the circle.
But right now, six people on the Supreme Court, along with the Trump administration, are doing all they can to tighten that previously ever-widening circle of personhood and Donald Trump is on board in a big-time way. Let us hope that we can stop them from turning that circle into a noose.
