The worst ruling in a century
The Supreme Court handed down its Callais decision about the time I finished my morning posts on Wednesday. Written by Justice Samuel Alito, it is a blockbuster ruling, and not in a good way. Hours later, Rick Hasen called the 6-3 decision in a case from Louisiana “one of the most pernicious and damaging Supreme Court decisions of the last century.” Callais guts what the Roberts court had not already whittled away of protections for minority representation passed sixty years ago, Hasen writes, “while pretending they were merely making technical tweaks to the Act.” Of course. Alito wrote it.
Hasen’s assessment is blistering:
This decision will bleach the halls of Congress, state legislatures, and local bodies like city councils, by ending the protections of Section 2 of the Act, which had provided a pathway to assure that voters of color would have some rudimentary fair representation. It’s the culmination of the life’s work of Chief Justice John Roberts and Samuel Alito, who have shown persistent resistance to the idea of the United States as a multiracial democracy, and a brazen willingness to reject Congress’s judgment that fair representation for minority voters sometimes requires race-conscious legislation. It gives the green light to further partisan gerrymandering. It protects Alito’s core constituency: aggrieved white Republican voters. It’s a disaster for American democracy.
Hasan explains that under the original VRA, proving intent to discriminate under “vote dilution” schemes proved difficult:
Congress responded boldly to that ruling—it rewrote Section 2 of the VRA to allow minority voters to say that plans that had a racially discriminatory effect were vote dilution. And as it was doing this, John Roberts was a young Department of Justice lawyer in the Reagan White House who spearheaded the effort to scuttle a stronger Section 2 in Congress. He failed. The new Section 2 made clear that Congress wanted to increase minority representation and alleviate the burden on voters to win these cases by eliminating an intent requirement.
The new Section 2 was a tremendous success, leading to the election of scores of minority-preferred candidates in Congress and on the state and local level. In 1986, in Thornburg v. Gingles, the Supreme Court interpreted the revised Section 2 to require courts to apply a multi-part test to determine when a jurisdiction had to draw districts to give minority voters a fair chance to elect representatives of their choice. The result of these two efforts is why today about a quarter of Congress is represented by a person of color, but it is especially thanks to Section 2.
The Roberts Court consistently has whittled away at the Voting Rights Act. In 2013, for example, with the Shelby County v. Holder which demolished the Section 5 requirement that states with a history of race discrimination receive federal approval for changing voting rules. “When the Court killed Section 5,” Hasen writes, the Court “assured us that there was always Section 2 to protect minority voters.”
Then in 2021, the Court took the first shot at Section 2. In Brnovich v. DNC, Justice Alito, who had always voted against expansive minority voting rights on the Supreme Court, considered how Section 2 applied to laws making it harder for people to register and vote. Rather than following the text of Section 2 or Congress’s intent, Alito imposed such a tough test that since Brnovich there has not been a single successful Section 2 case aimed at these voting restrictions.
And now comes Callais. Let’s not sugarcoat things: Alito’s opinion eviscerates Section 2 as applied to redistricting. He throws out the Gingles test—while denying he is doing so—and has restored a requirement that plaintiffs prove discriminatory intent when challenging district lines. Only if a computer algorithm would protect minority voters by chance do they have a chance to win such a case. What’s worse, the state can defend their maps by claiming that they were merely engaging in partisan gerrymandering. This move is thanks to what the Supreme Court wrote in the 2019 Rucho case—that though partisan gerrymandering is unconstitutional, it is out of the Court’s realm to fix.
Meaning that when Louisiana’s white Republicans redistrict away black opportunities for representation, they merely need argue that they’ve drawn districts to help Republicans, not whites. Hasan calls the transparent nonsense “outrageous.”
As outrageous as convicted felon and twice impeached Donald Trump swearing an oath to “preserve, protect and defend the Constitution of the United States” then cozying up to dictators and behaving as if the Constitution and the Bill of Rights are meaningless. As outrageous as the sycophants standing with him who took similar oaths that they “will bear true faith and allegiance” to a constitution born in reaction to monarchy, then making obeisance to a would-be king. As outrageous as the disingenuous behavior of six Supreme Court justices led by Roberts who took the same oath plus this one:
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
But that’s the America we live in. For now.
The Civil Rights Act and the Voting Rights Act passed under the Johnson administration overturned the hundred-year-old Jim Crow system whites erected to resist the Reconstruction Amendments. The CRA and VRA helped define the last 60 years as much as the conservative movement that arose to resist them tooth and nail. They increased opportunities for minority citizens to register and vote and, over time, led to legislatures that more resembled the whole of America, a multicultural America. But like the Reconstruction Amendments before them, those laws did not change many hearts, any more than World War II drove a stake through the heart of fascism. Racists, fascists, and — as I’ve long argued — royalists, simply conceal their true selves when fortune turns against them. They learn to speak in dog whistles and whispers. They bide their time, marshal their resources, and organize until it is time again to unmask. Like now under Trumpism.