Jonathan P. Baird

In a little-noticed decision on its shadow docket, the U.S. Supreme Court’s conservative majority allowed Texas to use a racially gerrymandered congressional map in next year’s mid-term election. The map Texas drew was designed to disadvantage minority voters and add five congressional seats for the Republicans.

The Court was doing a big favor for Donald Trump. Redistricting is typically done every 10 years. The Court was responding to Republican panic about the 2026 mid-term elections. Fearing big losses, Trump initiated a gerrymandering arms race to gain advantage in as many states as possible for the Republicans. The purpose was to improve the chances of electing Republicans from Texas to Congress.

It is notable that the Supreme Court had previously held for more than 30 years that the government violates equal protection when it uses race as a predominant factor in districting. That is exactly what Texas did.

When Texas drew these racially gerrymandered districts, a legal challenge ensued. A three judge panel in the federal court found tha Texas map was unconstitutionally racially gerrymandered. The Court said the map was designed to dilute the power of black and brown voters.

The conclusion was not superficially arrived at. The judges had conducted a nine day hearing with over 20 witnesses with thousands of exhibits introduced. The factual record was over 3,000 pages. In a 160 page decision, the majority opinion, authored by a judge appointed by Trump, found Texas impermissibly used race as a basis for drawing election districts.

The decision would have prevented Texas from slicing and dicing Latino voters into districts for the purpose of weakening their voting strength. Texas is only 40% white but white voters control 73% of the state congressional seats. The trial court decision, if it had been put into effect, would have forced Texas back to the 2021 map which had already given the Republicans an advantage.

What was upsetting about the Supreme Court’s decision was not only the bottom line result. It was the way the decision was effectuated, once again on the shadow docket where decisions are offered without any substantial rationale and with no oral argument. There is no solace in the fact the decision is preliminary. The Court absurdly said that Texas made a strong showing of irreparable harm and that the equites and the public interest favor it. The idea this decision is in the public interest is laughable.

In response to a detailed 160 page opinion, the Court put forth five paltry, embarrassing paragraphs. To quote Justice Elena Kagan’s dissent, the Court intervened “ based on its perusal, over a holiday weekend of a cold paper record”. Kagan went on:

“We are a higher court than the district court but we are not a better one when it comes to making such a fact-based decision.”

The Supreme Court is a court of appellate jurisdiction. Its role is supposed to be limited since it does not re-try the facts. The Supreme Court and appellate courts generally are bound to accept the trial court’s fact-finding unless it is clearly erroneous.

In reversing the federal district court, the Supreme Court showed disdain and disrespect for a lower court. With barely any explanation, the Court majority brushed aside very detailed fact-finding. While the Court can say what the law is, they don’t have the power to say what the facts are. In this case, they swatted the facts away and erased them.

There is a pattern of the Supreme Court doing that. Chief Justice John Roberts did exactly the same thing in the Shelby County case which eviscerated the Voting Rights Act.

To say it is a bad look doesn’t go far enough. Lawyers and judges should be declaring a five alarm fire. The Court has been corrupted. It is now a Republican Party subsidiary. They have sided with the Trump regime in 90% of shadow docket cases that have reached them. The best that can be hoped for is that fear of loss of all credibility will rein them in occasionally.

The justifications offered by the conservative majority were exceedingly weak. They said the lower court failed to honor the presumption of legislative good faith. But the Texas legislature did not even try to camouflage this racial gerrymander as simply a partisan one. Texas admitted the use of race. The High Court also chastised the lower court for not coming up with its own viable alternative map but that doesn’t make the racial gerrymandering go away.

The Court said the challenge to the new districts came too close to the next election. But when the trial court made its decision, the election was a year away. The plaintiffs had filed suit as early as they possibly could. The Supreme Court is, in effect, encouraging states to monkey around with gerrymandering before elections.

To appreciate the harm the Texas redistricting case represents, a wider angle lens is required. The Supreme Court has been reading the 14th Amendment out of the Constitution. Given the history of racism and white supremacy in the United States, we need to understand that the whole point of the 14th Amendment was the recognition of Black people as full citizens. Full citizenship, requires, among other things, equal voting rights. The Supreme Court has entirely lost that thread.

The historian Eric Foner once wrote that the 14th Amendment was the most consequential addition to the Constitution since the Bill of Rights. Sherrilyn Ifill says it was our nation’s reset after the Civil War but we have not honored its legacy. The reset was about creating a multi-racial democracy.

For 100 years, the 14th Amendment was almost snuffed out. It came back to life in the 1960’s but it has been strangled again. The Supreme Court has almost murdered it. I would suggest that re-invigoration of the Reconstruction amendments, the 13th, 14th and 15th is one means to advance the goal of multi-racial democracy. Those amendments don’t have to be enfeebled. Some day lawyers and jurists will bring them back to life.

Among the most repellent things Donald Trump has said were his comments on December 2 that Somali immigrants were “garbage”. He said, “They contribute nothing. I don’t want them in my country. Their country is no good for a reason. Their country stinks”. He went on to say Somali immigrants “have destroyed our country”. He singled out Congresswoman Ilhan Omar who is Somali saying she “shouldn’t be allowed to serve in Congress” and she “should be thrown out of our country”.

Minnesota has the largest concentration of Somalis in the country. About 84,000 people of Somali descent live in Minnesota. They have settled in Minnesota over the last three decades. The great majority are U.S. citizens or legal residents. There are very few undocumented Somalis.

Trump’s comments followed his first term remarks where he referred to African nations and Haiti as “shithole” countries.

Intentional dehumanization such as Trump’s racist rant creates a permission structure for violently-inclined MAGA followers to act out against people of color. Some portion of white supremacists in the MAGA base get their switch flipped by the venom. Acts of violence or shootings against those perceived as Somali are predictable along with accompanying manifestos justifying the acts based on great replacement theory.

Congresswoman Omar has received many death threats. In February 2019, the FBI arrested a Coast Guard Lieutenant for plotting to assassinate Omar. Later in April 2019, a man threatened to assault and murder Omar in a phone call to her office and he ended up pleading guilty. Trump re-tweeted a tweet that falsely said Omar partied on the anniversary of 9/11. Omar has been a prime target of online hate. The newest Trump comments further endanger her life.

It is notable that none of the cabinet members or people around Trump publicly reacted to the racist offensiveness of his comments about Somalis. Profiles in courage – not. It is more like profiles in moral debasement. Nothing that comes out of Trump’s mouth would propel his circle of sycophants to say a peep. Silence is golden like everything around Trump.

Trump’s language is reminiscent of the German Nazi terminology directed against Jews. The Nazis saw Jews as racially inferior sub-humans. Negatively categorizing entire groups as garbage is unacceptable and below any standard of civilized public discourse.

In justification of his remarks, Trump cited alleged fraud committed by Somali immigrants. Dozens of Somali immigrants have been charged with fraud for allegedly stealing $1 billion from Minnesota’s COVID-19 pandemic relief.

Even if Somalis were engaged in fraud, they are still entitled to the presumption of innocence like all criminal defendants. In the United States, estimates for the total amount of COVID-19 relief fraud range from hundreds of billions to over $1 trillion. The Paycheck Protection Program, Economic Injury Disaster Loans and unemployment insurance all experienced widespread fraud because prevention controls were relaxed.

There is no reason to single out Somalis considering the national scope of the fraud. They were hardly alone. Also, it prejudices the fraud cases of the Somali defendants when a President weighs in. Because of the President’s influence, a fair trial becomes much harder to accomplish.

What Trump does not mention is the unprecedented corruption of his own regime. Being a convicted felon himself, you might think that someone with his track record for self-dealing and for pardoning white collar fraudsters would tread lightly. He just pardoned Juan Orlando Hernandez, the former President of Honduras, who was convicted in federal court for drug trafficking 400 tons of cocaine into the U.S. Trump has used the pardon power to normalize corruption. His hands could not be dirtier. He makes the 19th century robber barons look like choir boys.

As bad as the overt racism, Trump’s comments about Somalis also reflect total ignorance of Africa and its history. I was reminded of a book I read a long time ago, How Europe Underdeveloped Africa, by Walter Rodney, a historian from Guyana. Trump evinces no awareness of the history of slavery and European colonialism in Africa. Africa was robbed by the Europeans and later by the Americans. It was made poor because of the slave trade and economic exploitation. Rodney writes:

“The question as to who and what, is responsible for African underdevelopment can be answered at two levels. Firstly, the answer is that the operation of the imperialist system bears major responsibility for African economic retardation by draining African wealth and by making it impossible to develop more rapidly the resources of the continent. Secondly, one has to deal who those who manipulated the system and those who are either agents or unwitting accomplices of the said system. The capitalists of Western Europe were the ones who actively extended their exploitation from inside Europe to cover the whole of Africa.”

American slave traders and capitalists followed up on the exploitation and to some extent replaced the Europeans. Rodney doesn’t remove the ultimate responsibility for development from the shoulders of Africans but he recognizes that African poverty must be seen inside the context of colonialism and imperialism.

Like the rest of Africa, Somalia was victimized by European colonialists, primarily Italians. European powers colonized Somalia in the late 19th century as part of the scramble for Africa. Both the British and the Italians had colonies there and Somalia did not gain independence until 1960. It has become the model for a failed state considering the constant warring but the historical background is not appreciated as evidenced by Trump’s scapegoating. He quite obviously knows nothing about Somalia.

It is like the news cycle has already moved on from the Somalis as garbage comments. The public is anesthetized to the racism. America’s collective response to the comments has been pitifully weak. Voltaire once said, “Those who can make you believe absurdities, can make you commit atrocities”. Those words still ring true. We must never forget that all human beings have inalienable rights by virtue of being human.