When Donald Trump made his campaign pitch to African-American voters in Michigan, he clung to an image of black America that’s as racialized as it is entrenched in the minds of many of his supporters. “You’re living in poverty. Your schools are no good. You have no jobs,” the then-candidate told a crowd that was overwhelmingly white, only to end with a question: “What the hell do you have to lose?”
That question, rhetorical though it may have been, answered itself time and again during Trump’s first year in office, a period marked by not just destructive policies for black and brown people, but also by the biggest assault on civil rights and the rule of law as any I have seen in my three-decade career as a civil rights lawyer. If Charlottesville gave the public a glimpse into the president’s moral failure in the face of white supremacy, his administration has, by word and deed, made it plain that it has no interest in advancing racial justice and pushing America toward the more perfect Union that our Constitution envisioned.
One needs not look further than Trump’s first few hours as president, when his Department of Justice abruptly notified civil rights groups challenging Texas’ discriminatory voter ID law that, due to a “change in administration,” it would no longer be a faithful partner in fighting suppression at the ballot box. The United States was no longer our co-counsel in fighting against discriminatory voting laws, but was now our adversary — a stunning about-face in a landmark challenge brought in the wake of the Supreme Court’s weakening of the Voting Rights Act in 2013.
That switch in position for the federal government was just the beginning of a systematic, all-out reversal in so many areas of the laws that are critical to advancing racial justice and equality. In his first year leading the DOJ, Attorney General Jeff Sessions may have lost the confidence of the President, but that hasn’t stopped the nation’s top law enforcement officer from declining to enforce the law whenever civil rights and communities of color are under attack.
We saw this early on in Sessions’ tenure, when he attempted to slam the brakes on a consent decree between DOJ and the city of Baltimore, which the Obama Administration had determined had engaged in an egregious pattern of unconstitutional policing practices that only meaningful oversight could cure. Were it not for the refusal of the federal judge there to allow DOJ to abandon the very decree it had negotiated, Sessions might have gotten away with scuttling an agreement openly supported and awaited by the city’s police commissioner, mayor and long-beleaguered citizenry.
That abandonment is evident in cities like North Charleston, a locality that rose to national prominence when a courageous bystander captured on video the death of Walter Scott, who was shot in the back by a police officer several times as he ran for his life. Following his death in 2015, DOJ committed to review the police department’s policies and practices and offer recommendations for reform, only to reverse course during the Trump era and reduce the amount of oversight and accountability it was willing to provide. Sessions has even refused to release the results of the department’s review of the practices of North Charleston Police Department, despite multiple written requests from community leaders and from South Carolina’s African American Republican United States Senator, Tim Scott.
When the Trump Administration is not switching sides — as it did yet again when it determined that federal civil rights laws don’t protect gay workers or transgender students — it has needlessly jumped into controversies where the law is settled. Perhaps the most ominous sign of Sessions’ misplaced enforcement priorities when it comes to racial justice was his decision last year to marshal the department’s resources to review the affirmative action policies of Harvard University — a little over a year after the Supreme Court had, once again, upheld the constitutionality of narrowly-tailored, race-conscious affirmative action policies at the University of Texas at Austin.
Sessions likes to say that all of his actions as attorney general are guided by his commitment to the rule of law. But just the opposite is true. Under his watch, long-established legal precedents and principles are suddenly under siege. When the Justice Department filed a brief in the Supreme Court in the case of a Christian baker who declined to bake a wedding cake for a gay couple, the Trump Administration inexplicably took the side of the baker ignoring the historical role of religion in justifying discrimination on the basis of race — and potentially opening up long-settled public accommodations laws to similar challenges. It’s no wonder there was fierce opposition within the DOJ to even jump into the high-profile dispute.
Similarly, just a week ago, the Trump Administration’s top Supreme Court lawyer was raked over the coals during oral argument by Justice Sonia Sotomayor, who sought an explanation for why the DOJ dramatically reversed its position in yet another case: a challenge to the well-established interpretation that the National Voter Registration Act of 1993 prohibits states from using non-voting as a trigger for voter purges. The lawyer didn’t have a good answer for the justice, probably because there isn’t one.
To paraphrase Supreme Court Justice Thurgood Marshall, who in a scorching final dissent before his 1991 retirement had some choice words for the deeply conservative Court: Power, not reason, is the currency of this new regime.
In the absence of legislative achievements it can call its own, the only thing the Trump administration has to show for is its extremist anti–civil rights agenda, its need for petty score-setting, its drive to assert its dominance through subtler means — like the coterie of patently unqualified and racially hostile judicial nominees for seats on the federal bench.
Despite the aggressiveness of this administration, the civil rights bar has proved itself to be a formidable opponent. We litigated out of existence Trump’s sham voter-fraud commission — which existed for no other reason than to stoke the president’s own insecurities about race. We beat back an effort by Housing and Urban Development Secretary Ben Carson to reverse a long-fought-for rule designed to promote racial and socioeconomic integration. And we prevailed in the Texas case, despite the federal government’s reversal on the question of whether the state’s voter ID law amounted to intentional discrimination.
But we’ve had setbacks as well. The battle continues around protections for DREAMers, around the shoddily implemented Muslim ban and around other measures targeting communities of color. As for Trump’s openly racist rhetoric and his rise as a heroic figure to white supremacists, that may be his most damaging legacy yet: The way he’s effectively removed the shame and taboo long associated with explicit racism gives me pause about what’s to come. That damage will be harder to repair than any other challenge we have faced.