Barrett’s future ascension to the high court portends tremendous headwinds for progressive priorities and legislation. But this is not sufficient reason for Democrats to consider drastic measures such as expanding the Supreme Court. What does justify such measures is that the Republican political project has gone beyond shaping policy to rigging the electorate. In politics, sometimes you lose—and the Court’s rightward tilt for the past half century has reflected the left’s losses. The conservative justices, though, have now concluded that their role is to help the Republican Party continue to wield political power, by inhibiting voters’ ability to make a different choice.
James K. Vardaman, later a Democratic governor and senator from Mississippi, wanted to be very clear about the purpose of the state’s 1890 constitution. “Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics,” Vardaman declared. “Not the ‘ignorant and vicious,’ as some of the apologists would have you believe, but the nigger.”
But when the case of Williams v. Mississippi came before the Supreme Court in 1898, challenging the state’s constitution and its laws for discriminating against Black voters, the Court upheld the rules. Justice Joseph McKenna wrote that even though the state’s poll tax, grandfather clause, and literacy tests had reduced the registration rate of one of the largest African American populations in the country to almost nothing, the measures themselves did not mention race and therefore did not violate the Constitution’s prohibitions on racial discrimination.
“It has been uniformly held that the constitution of the United States, as amended, forbids, so far as civil and political rights are concerned, discriminations by the general government or by the states against any citizen because of his race,” McKenna wrote. “The operation of the constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”
As the legal historian Lawrence Goldstone wrote in Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, the justices had “chosen a paper-thin, even tortured, interpretation of the Fourteenth Amendment and turned a blind eye to the obvious.” When it came to Black rights, the Supreme Court was both ignorant and vicious.
The Williams case capped a decades-long process of disenfranchisement. Although the Reconstruction governments guaranteeing equal rights for Black Americans had been overthrown by 1876, and Republicans had retreated from their advocacy of racial equality, southern politics remained in flux for some years after. The long night of Jim Crow did not fall all at once.
States, the laboratories of democracy—or, in this case, its suppression—experimented with different methods that would disenfranchise Black voters while being superficially race-neutral enough to pass under the blind eye of the justices on the Supreme Court, who were willing to countenance the most blatant forms of discrimination so long as they did not announce their obvious purpose.
There were grandfather clauses, which exempted those who had been able to vote prior to the Civil War and their descendants from the new, onerous voting requirements. There were poll taxes and property requirements, which dispossessed Black men could not afford. There were literacy tests, which could take the form of unanswerable questions in the event that a prospective Black voter knew how to read. All of these provisions were aimed at disenfranchising Black voters, but technically such measures didn’t mention race at all. After Williams, southern states were free to employ all of these methods: The Constitution was no obstacle to white supremacy in the South.