Laundering Racism Through the Courts the Scandal of States' Rights

Abstract

It is well known that the conservative majority on the Supreme Court believes strongly in the doctrine of federalism. This article discusses how the Court’s adherence to federalism has led it to make a number of decisions that have had disastrous consequences. The article focuses on two decisions, Shelby County v. Holder and National Federation of Independent Business (“NFIB”) v. Sibelius. In Shelby County, the Court struck down, on states’ rights grounds, the formula provided in the Voting Rights Act for determining whether states and municipalities had to get approval from Washington (preclearance) for any change in their voting rules to ensure that the change was not racially discriminatory. Similarly, in NFIB, the Court struck down the inducement in the Affordable Care Act for states to participate in the law’s Medicaid expansion program on the grounds that it violated states’ rights. In both Shelby County and NFIB, Chief Justice Roberts wrote the principal opinion. The result of the Shelby County decision was that states and municipalities, mostly those in the former confederacy, which had previously discriminated against African-Americans in connection with voting, started discriminating again. The result of the NFIB decision, which allowed states to opt out of the Medicaid expansion, was that many states, including most of those in the former confederacy, declined to participate in the expanded program even though the expansion was paid for by the federal government. Unsurprisingly, the result of the states’ refusals has been terrible health outcomes for many of their citizens including many African-Americans. The article further points out that given the sorry history of the Southern states in terms of voting discrimination and providing social services, these results were imminently predictable. Unfortunately, the Court puts more emphasis on its federalist ideology than on the consequences of its decisions.