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SCOTUS Channels Jim Crow Jurisprudence

The spirit and reasoning of the majority in Trump v. U.S. immunity case evokes the worst of post-Civil War jurisprudence.

US Supreme Court, by zacklur (CC BY-NC-SA 2.0)

“We are writing a rule for the ages,” Supreme Court Justice Neil Gorsuch declared this year during oral arguments in Trump v. United States. Little did the country know then that Gorsuch’s statement was more than a prediction; it was a threat. On Monday, the court’s conservative majority, led by Chief Justice John Roberts, ruled that the president has at least presumptive immunity for all official acts and absolute immunity for “the exercise of his core constitutional powers.” As dissenting Justice Sonia Sotomayor concluded, “in every use of official power, the President is now a king above the law.”

Much has already been written putting Trump v. U.S. in the context of recent political history, marking the decision as another sweeping victory for the conservative legal movement and more specifically the theory of a unitary executive with nigh unlimited powers. But there is another chilling parallel — one that goes back to the end of Reconstruction and the rise of Jim Crow.


In April 1873, a mob of armed white men surrounded the Grant Parish Courthouse in Colfax, Louisiana. Two months earlier, a federal judge had declared the pro-Reconstruction Republicans the winners in the previous fall’s disputed gubernatorial elections. White supremacists violently revolted across the state; in Colfax, Black freedmen gathered at the courthouse to protect the local officials from anti-Reconstruction Democrats looking to seize power. On Easter Sunday, the white mob advanced on the freedmen. They ignored a flag of surrender, set the courthouse ablaze and butchered 57 to 80 Black Americans.

It was, wrote historian Eric Foner, “the bloodiest single instance of racial carnage in the Reconstruction Era.” The federal government brought indictments under the Enforcement Act of 1870 and managed to convict three men of conspiring to violate the victims’ civil rights, including the right to freedom of assembly and the right to keep and bear arms. If the idea of a “conspiracy to violate rights” sounds familiar, it’s because the same law and the same charge are at the heart of the election interference case against Donald Trump.

But in 1876, in Cruikshank v. U.S., the Supreme Court annulled the convictions. The five-member majority bafflingly denied that the freedmen had been killed “on account of their race or color.” Furthermore, it ruled that the 14th Amendment’s constraints — prohibiting, for example, the denial of “equal protection of the laws” — applied only to the actions of states, not individuals. And to cap it all off, it decided the 15th Amendment secured not the right to vote, but only the protection against state “discrimination in the exercise of that right.”

Much of Cruikshank has since been reversed — in no small part, ironically, by the Roberts court’s rulings wielding the Second Amendment to strike down state gun laws. But Cruikshank’s legacy endured for decades, as part of a series of decisions that gutted the power of the post-Civil War amendments. The Slaughter-House cases of 1873 ruled that the 14th Amendment’s protections for citizens’ “privileges and immunities” did not incorporate the Bill of Rights. The Civil Rights Cases of 1883 rejected the contention that the 13th and 14th amendments allowed Congress to outlaw racial discrimination. And most infamously, the court ruled in Plessy v. Ferguson (1896) that the 14th Amendment granted nonwhite Americans only legal, not social equality — a standard that it declared satisfied by the perverse doctrine of “separate but equal.”

The majorities in these cases frequently neglected or outright ignored evidence that their jurisprudence contradicted the amendments' original intent. The rulings hastened the end of Reconstruction and cemented the imposition of Jim Crow. Black Americans and their pro-Reconstruction white allies, already outnumbered by armed and angry ex-Confederates, learned that the federal government would not and could not come to their defense. Groups like the Ku Klux Klan (which the Enforcement Act had targeted) and the White League were free to impose segregation at gunpoint. For Black Americans, writes Foner, the Colfax massacre “was long remembered as proof that … they stood at a fatal disadvantage.” Until its removal in 2021, a historical marker near the courthouse hailed that day as “the end of carpetbag misrule in the South.”

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Like the Jim Crow-era decisions, the immunity ruling ignores both the plain text of the Constitution and the historical evidence of its authors' intent to embolden those who believe that might makes right. Rolling Stone reports that “various lawyers and other allies close to the ex-president were genuinely, pleasantly shocked” at the court’s ruling and that “plans are already in motion to use this new, historic court decision as a legal shield to help a potential second Trump administration.” In a new Trump White House, there would be no constitutional concerns to constrain him from deploying the military domestically as a deportation force, ordering troops to shoot protesters or issuing sweeping pardons to any supporters who break the law in his service. As Heritage Foundation President and Project 2025 lead architect Kevin Roberts boasted, “[W]e are in the process of the second American Revolution, which will remain bloodless — if the left allows it to be.”

The message is clear: The forces of MAGA plan to seize power in 2025 and never lose it again.

But they shall lose. Perhaps their defeat will come as soon as November, remote as that may seem right now, or perhaps further down the road. “The flames kindled on the 4th of July 1776,” wrote Thomas Jefferson to John Adams in 1821, “have spread over too much of the globe to be extinguished by the feeble engines of despotism. On the contrary they will consume these engines, and all who work them.”

And when that defeat arrives, the Americans who still believe in democracy and rights must not shrink from abolishing the minoritarian movement that brought the country to this perilous place. Expanding the Supreme Court, dismantling the filibuster, passing a new Voting Rights Act — these are only the first steps. Every effort must be made to rip out, root and branch, the levers used by the anti-democratic right, as well as the moneyed interests that have fueled their success and brought the country as close to fascism as it has ever been. In politics, no defeat is ever final. But Trump and his allies’ time in the wilderness, when it comes, must be as long as possible.

James Downie is a writer and editor for MSNBC Daily. He was an editor and columnist for The Washington Post and has also written for The New Republic and Foreign Policy.