Dred Scott 2.0.

February 8, 2022

[Audio version here]

          On Monday, the reactionary majority on the Supreme Court issued its most stunning decision to date in Merrill v. Milligan. The Supreme Court stayed a lower court order invalidating a congressional redistricting map drawn by the Alabama legislature. A three-judge panel found that the proposed map violated the anti-discrimination provisions of the Voting Rights Act. As a result of the Supreme Court’s stay of the lower court’s order, millions of voters in Alabama will be forced to vote in congressional districts that were found to be gerrymandered for the purpose of diluting the voting power of Black citizens. Words fail in the face of such callous disregard for the most fundamental right of all—the right to vote.

          The animus of the reactionary majority is manifest. The majority opinion granted extraordinary emergency relief to preserve a redistricting map that three federal judges found was likely drawn for the purpose of denying equal representation to Black voters. The reactionary majority did not—indeed could not—overrule the lower court’s factual findings that the Alabama legislature likely acted with racial motivation in drawing its map. Instead, the Supreme Court majority (again) announced new rules to upend established precedent. It again used its “shadow docket,” to achieve a surprise result, dispatching a 50-year-old statute without so much as a proper burial.

          In 1857, the Supreme Court ruled in Dred Scott v. Sandford that because enslaved persons entered the U.S. as property, neither they nor their descendants could ever be citizens of the United States. The Dred Scott opinion is filled with vile, racist language by Chief Justice Roger Taney that dehumanized enslaved persons and Indigenous peoples. Taney’s racism had no place in an opinion of the Supreme Court. It is a stain the Supreme Court will never erase, no matter how hard it tries.

          Today’s decision by the reactionary majority did not resort to the overt racism of Justice Taney. It did not have to. Justice Taney’s opinion in Dred Scott denied enslaved persons their humanity. Justice Kavanaugh’s opinion in Merrill v. Milligan denies Black citizens the rights guaranteed to them by the 14th and 15th Amendments and the 1965 Voting Rights Act. Kavanaugh justifies that result by dissembling, misstatements, and distraction—rhetorical devices intended to conceal his true purpose. Justice Kavanaugh and the reactionary majority learned a lesson from the Dred Scott case, but it was the wrong lesson. What they learned was, “Don’t say the ugly part out loud; instead, decide on the outcome and make up new rules to set aside precedent and laws that serve as obstacles.”

          There are a plethora of legal analyses explaining the decision. I recommend the essay by Mark Josheph Stern in Slate, SCOTUS Just Blew Up the Voting Rights Act’s Ban on Racial Gerrymandering, (“By greenlighting Alabama’s egregious map, five ultraconservative justices declared open season on racial minorities’ voting power.”) As Stern notes, the decision in Merrill dooms the last remaining provisions of the Voting Rights Act—those that prohibit discrimination based on race.

          Stern also notes that the decision was so patently wrong that Chief Justice Roberts felt moved to write a dissent that praised the actions of the lower court. Roberts wrote

[I]n my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.

          How then, you may reasonably ask, did Kavanaugh decide to issue a stay of the lower court’s order that was correct on the law and the facts? Easy. Kavanaugh resorted to Kafkaesque reasoning. According to Kavanaugh, the upcoming election is “too close in time” to upset the redistricting map proposed by the Alabama legislature. Here’s the depravity in Kavanaugh’s logic: When legislatures propose redistricting maps after a decennial census, those proposed maps will always be close in time to the next congressional midterm because of the time it takes to compile and release the census results and build new maps based on the data.

          Under Kavanaugh’s logic, racist legislatures should produce grotesque maps that are obviously illegal, safe in the knowledge that the Supreme Court will allow those maps to remain in place for at least one election cycle. As I said, Kafkaesque.

          Kavanaugh used another deceit to justify the stay. Kavanaugh said that the plaintiffs did not have a “clearcut” case that favored a stay by the lower court. But on the appeal to the Supreme Court, it was the state’s burden—not the plaintiffs’ burden—to show that it was entitled to an emergency stay. The state did not meet that burden and Kavanaugh avoided that troublesome fact by reversing the burdens of the parties on appeal. Kafkaesque.

          While a lot must happen before the outcome is finalized, the simple rule of Merrill v. Milligan is that it is permissible to draw congressional boundaries to disenfranchise Black voters. The nation fought a civil war and passed three constitutional amendments to ensure that the rule was otherwise, but the reactionary majority does not care. They have a supermajority on the Court and will do what they want without shame, embarrassment, logic, or human decency.

          What can we do? First, the Senate must carve out voting rights legislation from the filibuster and pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Second, we must expand the Supreme Court to stop the reactionary majority’s campaign to roll back civil rights to the 1950s. Both of those outcomes will be more attainable if we give Democrats strong majorities in the House and Senate.

          As always, it is up to us. We must prevail despite the fact that the Supreme Court has decided that not everyone’s vote counts equally. That fact should neither dispirit nor defeat us but should instead motivate and energize us as never before. We are engaged in a once-in-a-century struggle to preserve the promise of the Constitution, and we must respond with a once-in-a-century level of effort.

Trump’s violations of the Presidential Records Act.

          Like all presidents, Trump is required by law to preserve all presidential records—which are public property under the Presidential Records Act. Over the weekend, the Washington Post reported that Trump moved fifteen boxes of presidential papers to Mar-a-Lago. All presidential records must be turned over to the National Archives. Trump’s former advisers claim the violation was innocent, an explanation that stretches credulity to the breaking point. The documents moved to Mar-a-Lago were plainly covered by the Act. Their removal from the White House may also constitute obstruction of justice. See Just Security, Destroying Federal Documents During a Presidential Transition Is a Federal Crime.

          A word of caution about reports that Trump’s aides disposed of documents in “burn bags.” That practice sounds nefarious and illegal—and might be. Or not. All presidential administrations use burn bags to dispose of classified information to prevent its unauthorized disclosure. One of the many questions that plagued Hillary Clinton was that Huma Abedin disposed of Clinton’s daily schedules in burn bags. Were those schedules classified? I don’t know, just like we don’t know what Trump’s aides were destroying in the burn bags. Facts matter, so before we accuse Trump of new crimes, let’s not make baseless accusations—which could affect our credibility. Trump has committed plenty of documented crimes. We can focus on those as we wait to see if his aides destroyed information that should have been preserved under the Presidential Records Act.

Redistricting in flux.

          Despite the Supreme Court’s ruling in Merrill v. Milligan, the battle over redistricting is breaking in Democrats’ favor. Let’s remind ourselves that in November of 2021, Republicans claimed that they would retake the House through redistricting alone. Today, that claim seems dubious, or wrong. Cook’s Political Report gave a slight advantage to Democrats in the redistricting battle for the first time on Monday. See tweet by Dave Wasserman, “NEW: for the first time, Dems have taken the lead on @CookPolitical’s 2022 redistricting scorecard. But things are changing fast, so no one should be counting chickens (or eggs) yet. After Wasserman sent his tweet on Monday, two court decisions were released. The first was Merrill v. Milligan, discussed at length, above. The second was another decision by the Ohio Supreme Court that rejected—for the second time—congressional maps drawn by the Republican-controlled legislature. See The Columbus Dispatch, Ohio Supreme Court rejects Statehouse map, puts primary in question.

          Whatever happens with individual challenges to redistricting, the universal Rule of Litigation will apply: “You win some, you lose some.” But Republicans were planning on winning them all—which isn’t going to happen. So, let’s remain hopeful as we await the final outcome. The redistricting gloom and doom of late last year is another illustration of the fact that we should not let anxiety about future events prevent us from taking the steps necessary to change the outcome.

Concluding Thoughts.

          The terrific employment report released on Friday is working its way through the media and finally piercing the negative narrative that has dominated the last six months. Zachary Carter has written an essay in The Atlantic that addresses the “good news / bad news” feeling about the economy. See Zachary Carter in The Atlantic, The Economy Is Good, Actually. Carter starts by observing that “We are living through the best labor market in 50 years.” He then asks why Democrats have been so reticent in promoting that message.

          The answer, according to Carter, is that people are more sensitive to inflation than they are to employment rates. And that sensitivity is amplified by feelings of exhaustion about the pandemic. Even if you have a job, inflation is taking a bite out of your paycheck. If you lost your job a year ago and got a new job six months ago, being employed becomes the steady state that is taken for granted. But inflation slaps you in the face every time you go shopping.  

          So, what’s the answer to this messaging dilemma? It seems pretty obvious to me: We have good news (job growth) and bad news (inflation). We must tout the good news for all it is worth as we wait for the bad news to subside. We don’t really have another option, so we should play the hand we have been dealt—and do so with gusto. If Republicans were in charge now, we would be hearing about job growth 24-hours a day, seven days a week. Job growth and economic recovery under Biden have been historic. No other president has presided over such a large expansion of the economy during his first year in office. Let’s be proud of that fact, while being sensitive to but unapologetic about inflation. Inflation has been caused by supply chain issues and pent-up demand due to the pandemic—not by anything Biden or the Democrats failed to do. Democrats have plenty to be proud of—and we should start acting accordingly. Start by telling friends, neighbors, and complete strangers about the good news of job growth. Doing so may even lift your own feelings about the economy!

          Talk to you tomorrow!