Alito’s gift to racist legislatures
May 24, 2024
From 1870 to 1965, Southern states resisted the mandate of the Civil War amendments granting and protecting the right of Black citizens to vote. After 95 years of resistance by former secessionist states, Congress passed the Voting Rights Act, which required that redistricting decisions be “pre-cleared” by the Department of Justice. The preclearance requirement applied to states with a history of racially discriminatory voting practices.
Chief Justice John Roberts gutted the animating force of the Voting Rights Act in his opinion in Shelby County v. Holder (2013) by declaring that “our country has changed” and that racial gerrymandering “no longer characterizes” voting practices in the states subject to preclearance. (Of course, Roberts ignored the fact that the absence of racial gerrymandering was because of the preclearance requirement.) Roberts’ decision to end the preclearance requirement was a gift to racist state legislatures eager to return to the Jim Crow era.
Those legislatures wasted no time exploiting Roberts’ gift to the advantage of white voters. The legislatures drew congressional districts that effectively weighted white votes more heavily than Black votes. In the absence of the preclearance requirement, the only check on the power of racist legislators was litigation under the weakened provisions of the Voting Rights Act.
On Thursday, Justice Alito took another step in gutting the Voting Rights Act by inventing a “presumption of good faith” when legislatures with a history of racial discrimination draw new congressional boundaries. Like the earlier gift from John Roberts ending the preclearance requirement, Alito has also granted racist legislatures a gift—a presumption of good faith that will shield racial gerrymandering for generations to come. See Alexander v. South Carolina State Conference of the NAACP (05/23/2024).
In little more than a decade, the Supreme Court has turned history on its head: The Voting Rights Act required preclearance for states with a demonstrated history of racial discrimination in voting practices. Alito now grants those same legislatures a “presumption of good faith” even when the practical effect of their redistricting is to dilute the voting rights of Black citizens.
In bestowing racist legislatures with the presumption of good faith, Alito is advancing the twin causes of white Christian nationalism and insurrection symbolized by the “Appeal to Heaven” flag displayed over his beach house in 2023. Alito is, in short, in the vanguard of a hostile takeover of the US Constitution by white Christian nationalists. He is completing the work of the January 6 insurrectionists who beat law enforcement officers, defecated in the halls of the Capitol, and delayed a constitutionally mandated count of electoral ballots.
The reactionary majority on the Supreme Court is acting without restraint because they believe that Democrats do not have the courage and discipline required to impose reforms on the Court. The reactionary majority is not wrong in its assessment of the Democratic Party’s dithering and temporizing in the face of a constitutional assault that rivals the secession movement preceding the Civil War.
Either the 14th and 15th Amendments mean what they say, or they mean nothing. There is no “gray area” that shields “good faith” violations of their guarantees. The “presumption of good faith” invented by Alito has no more footing than a fairy tale. Alito and his fellow insurrectionists will not stop until Congress exercises its authority to enlarge the Court and circumscribe its jurisdiction—as expressly permitted by the Constitution. US Const. Art. III, Sec. 2, Cl. 2 (“The supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”)
Alito claims to be an originalist and textualist. In inventing a presumption of good faith found nowhere in the Constitution, he has usurped the mantle of the Framers of the Civil Rights Amendments. He working to replace their vision of an egalitarian nation with a system of castes in which skin color and circumstances of birth determine which votes will be given the greatest weight.
But it gets worse. In a concurrence, Justice Thomas took the opportunity to criticize the 1954 holding in Brown v. Board of Education and suggest that the basis for that ruling is no longer valid. Thomas wrote, in part,
In doing so, the Court [in Brown v. Board of Education] took a boundless view of equitable remedies, describing equity as being “characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. . . . Redistricting remedies rest on the same questionable understanding of equitable power. No court has explained where the power to draw a replacement map comes from, but all now assume it may be exercised as a matter of course.
The holding of the reactionary majority signals that they are coming for it all: Contraception, same-sex marriage, “inter-racial” marriage, and the application of the Bill of Rights to the states. The reactionary majority is emboldened by the milquetoast response of the Congress to Alito’s declaration that he is an insurrectionist and a Christian nationalist looking to establish a theocracy.
There is much more to this story, but my time is limited this evening. (We flew from LA to DC today.) I highly recommend the following, each of which addresses the central question in the Alexander case: When is racial gerrymandering permissible as an adjunct to partisan gerrymandering? Per Alito, racial gerrymandering is permissible as long as a legislature claims it was attempting to achieve partisan gerrymandering. See the following:
Dissent of Justice Kagan, in Alexander v. South Carolina State Conference of the NAACP.
In the majority’s version, all the deference that should go to the court’s factual findings for the plaintiffs instead goes to the losing defendant, because it is presumed to act in good faith. So the wrong side gets the benefit of the doubt: Any “possibility” that favors the State is treated as “dispositive.”
Ian Millhiser in Vox, Supreme Court Justice Sam Alito writes a love letter to gerrymandering.
On top of all of this, Alexander achieves another one of Alito’s longtime goals. Alito frequently disdains any allegation that a white lawmaker might have been motivated by racism, and he’s long sought to write a presumption of white racial innocence into the law.
Mark Joseph Stern in Slate, Clarence Thomas makes a full-throated case for racial gerrymandering.
And yet, as bad as Alito’s opinion was, it didn’t go far enough for Justice Clarence Thomas, who penned a solo concurrence demanding a radical move: The Supreme Court, he argued, should overrule every precedent that limits gerrymandering—including the landmark cases establishing “one person, one vote”—because it has no constitutional power to redraw maps in the first place.
We have remedies. We need only the courage and passion to pursue them:
Open an impeachment inquiry of Justices Alito and Thomas
Demand Alito’s recusal
Pressure John Roberts to recommend an investigation by the federal Judicial Conference
Expand the Court to dilute the death grip of the reactionary majority
Limit the Court’s jurisdiction as provided by Art. III, Sec. 2, Cl. 2
Democratic leaders have failed the American people by treating these offenses as political controversies over which Congress has no jurisdiction.
Louisiana criminalizes possession of mifepristone
In a further sign that Republicans are coming for contraception, the Louisiana legislature criminalized the possession of mifepristone—a drug that is used to treat miscarriages, induce labor, and manage abortions. See NYTimes Louisiana Lawmakers Vote to Make Abortion Pills Controlled Substances. Per the Times,
By classifying the abortion pills mifepristone and misoprostol as Schedule IV drugs . . . lawmakers in the state say they aim to curb the illicit distribution of the drugs for abortions. But the Food and Drug Administration does not consider the two medications to have potential for abuse or dependence, and years of research have overwhelmingly shown both pills to be safe.
Hundreds of physicians in the state opposed the bill, noting that it wrongly suggests that the drugs are addictive or dangerous. And the characterization of the mifepristone as an “abortion pill” is misleading. The drug is also used in the management of miscarriages and to induce labor at term. It is an essential part of healthcare for pregnant women. But in Louisiana, possession of the drug without a prescription will be treated in the same way as heroin and cocaine. Apparently, the overwhelmingly male Louisiana legislature views women’s healthcare as inherently dangerous.
When Trump says that Republicans will never seek to outlaw contraceptives, don’t believe him.
Opportunities for Reader Engagement
Join Partners4Democracy in an event focusing on Georgia!
Partners4Democracy is hosting its fourth Special Event focused on winning in Georgia on Thursday, May 30 at 8:00 PM (EDT). Featuring Senator Jon Ossoff, this is P4D’s fourth Special Event exploring the political landscape in the swing states critical in the 2024 election. While Senators Raphael Warnock and Ossoff won close elections in the Peach State, Republicans have since changed voting laws to depress Democratic turnout. Will it work? They will be joined by State Representative Stacey Evans and Kim Allen, founder of Power the Vote.
P4D is a volunteer group which raises money for grass roots groups in target states that work year round to organize and get out the vote among key constituencies. It also supports candidates in state and national races who have a credible chance of winning and who need additional financial resources. P4D identifies volunteer opportunities for its network and holds monthly Special Events on topics of interest in the 2024 election.
Attendance is free. Register HERE for this unique event.
Join a fundraiser to help elect George Whitesides to Congress in CA-27
Join supporters of George Whitesides, the Democratic candidate running for Congress in Santa Clarita (CA-27). for a fundraiser on Sunday, June 9 at 4:00 in Pasadena. Flipping CA-27 is one of our best opportunities to take back control of the House in November. The majority of voters in the district are registered Democrats, and President Biden won it by over 12 points in 2020. The current representative is GOP Rep. Mike Garcia, a MAGA Republican who co-sponsored the national abortion ban and voted to overturn 2020’s election results. In 2020, he won the district by only 333 votes. We have to win this race, and supporting George Whitesides is a good way we can affect that change.
Ticket link: https://secure.actblue.com/donate/060924pasadena
Concluding Thoughts
Decisions from the Supreme Court’s reactionary majority have effectively become lawless. Over the next 40 days, the Court will issue opinions in a dozen important cases, touching on issues such as presidential immunity, emergency abortion care, gun regulations, availability of mifepristone, restrictions on homelessness, and regulation of disinformation on social media. What could go wrong?
The biggest challenge in 2024 is communicating the urgency of multiple democracy-defining crises simultaneously. Part of the Republican strategy is to “flood the zone” with so many outrageous controversies that it is impossible to track them all. I do not have a magic solution for those of us feeling overwhelmed by the torrent of crises except to say that we cannot succumb to their strategy. We must be able to keep multiple existential crises top of mind.
The good news is that the “we” in the prior sentence is a collective “we” in the broadest sense. No single person should feel obliged to support every cause, fight every battle, and support every candidate. There are more than enough of us to do it all—if each of us does our part.
Don’t feel overwhelmed; instead, focus on one or two or three issues with passion and persistence. Then, trust that your fellow citizens are doing the same with other urgent issues. We only need enough of us to come together to carry all of us forward. We have been successfully implementing that strategy since 2017—and have every reason to believe we will continue to do so through 2024 and beyond!
Talk to you tomorrow!
Robert, thank you for your wisdom in helping us sort the polycrisis without being overwhelmed. “No single person should feel obliged to support every cause, fight every battle, and support every candidate. There are more than enough of us to do it all—if each of us does our part.”
I think the nail on the coffin of Democracy rests on the immunity case and how the Supreme Court will word it to have it both ways, skirting around the real meaning of minute while giving Trump cover. Right now it’s the vote and only the vote. Thanks Robert.