Justice Gorsuch beckons Jim Crow 2.0

November 21 2023

          In 2021, Justice Neil Gorsuch invited racist legislators to suppress the voting rights of Black Americans. Gorsuch did so by dropping a not-so-subtle hint in a concurring opinion in Brnovich v. DNC suggesting that legislators should challenge decades of settled precedent regarding the right of private plaintiffs to sue under Section 2 of the Voting Rights Act. It did not take long for state legislators to respond by challenging the right of private plaintiffs to contest racially gerrymandered voting districts.  

          On Monday, a three-judge panel in the 8th Circuit ruled that private plaintiffs do not have standing to file suit under Section 2 of the Voting Rights Act. In so ruling, the three-judge panel acknowledged that over the last forty years, private citizens have served as plaintiffs in 182 out of 197 of those cases. What changed? Nothing—except Justice Gorsuch’s invitation for state legislatures to make a frontal assault Section 2 of the Voting Rights Act. See Washington Post, Appeals court decision could limit enforcement of Voting Rights Act. (Accessible to all.)

          Professor Richard Hasen, an election law expert, posted a comment on Election Law Blog, saying that the ruling could “decimate the rights of minority voters” if adopted by the US Supreme Court. Professor Hasen writes,

It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources. If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.

The majority reaches its decision with a wooden, textualist analysis. It reaches it decision despite recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits. And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit.

          But judges appointed by Trump and H.W. Bush had no trouble second-guessing 182 prior decisions brought by private plaintiffs—claiming that they took a “deeper look” than hundreds of other federal judges and discovered “flimsy footing” missed in the 182 prior rulings.

Gosh! It’s almost like precedent doesn’t matter to Republican appointees when the opportunity presents itself to deprive Black Americans of the promise of the 15th Amendment and the Voting Rights Act!

          The decision by the three-judge panel of the 8th Circuit is an outrage. But it is yet another sign of the desperation of a Republican Party seeking to slow its inevitable demise. If that effort involves depriving Black voters of their franchise, Republicans see that deprivation of rights as acceptable collateral damage.

          The legacy of Justice Roberts will once again be on the line. He started the movement to Jim Crow 2.0. Justice Gorsuch has beckoned it anew. Let’s see if Roberts can contain the havoc he unleashed.

House Republicans preparing to “investigate” the January 6 investigation.

          You may have noticed that Speaker Mike Johnson released all videotapes of the interior of the Capitol on January 6. Why? The move appears to be a prelude to a renewed effort by House Republicans to “investigate the investigators” on the January 6 Committee. But as noted by Josh Marshall at Talking Points Memo, the Republicans pushing to investigate the January 6 Committee all played a part in the insurrection. See Talking Points Memo, Republicans Pushing To Investigate Jan 6 Investigators All Played Parts In Efforts To Overturn 2020 Election.

          In case there is any doubt about Speaker Johnson’s intentions, Trump promoted a post on his vanity media platform that said the following:

Everything you’ve been told about January 6th is bullsh!t. The real insurrectionists are those who framed Trump to try to stop him from ever being President again - & who framed YOU as “domestic terrorists” to try to crush America First.”

They have failed - and they will pay.

          It is normal to be frustrated and upset that House Republicans will attempt another investigation of January 6 to promote their baseless conspiracy theories. But not to worry! A tidal wave of evidence supports the truth—i.e., that a violent mob incited by Trump attacked the Capitol to prevent the count of electoral ballots. If House Republicans want to replay that scenario during the 2024 election season, they deserve the drubbing they will receive at the hands of skilled Democrats armed with the truth.

D.C. Circuit hears argument on Judge Chutkan’s gag order against Trump.

          Trump appealed a gag order issued by Judge Chutkan to the D.C. Circuit Court of Appeals. A three-judge panel held oral argument on the appeal on Monday. The judges indicated that they are likely to pare the gag order. Judge Patricia Millett said the following during oral argument:

There’s a balance that has to be undertaken here, and it’s a very difficult balance. We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?

See Politico, ‘A careful scalpel’: Appeals court signals it will cut back on Trump’s federal gag order.

          Balancing Trump's free speech rights and potential damage to the trial against Trump is necessary. But I am mystified by the deference being afforded Trump. He is an indicted felon awaiting trial. He was granted a pre-trial release that imposed conditions on his conduct pending trial. See Order Setting Conditions of Release. Among other restrictions, Trump is prohibited from attempting to influence or intimidate witnesses, jurors, or officers of the court.

          As noted above, Trump just re-posted a threat that said, “Those who framed Trump will pay.” It does not take a brain surgeon (or federal judge) to interpret that statement as a direct threat against witnesses and officers of the court. And yet, it appears that the panel of D.C. Circuit judges will perform brain surgery on the gag order while Trump mocks them with real-time statements that violate the very gag order they are dissecting.

          The general failure of appellate justices to support trial judges struggling to maintain order over a chaos agent is disappointing. Trump's strategy is to destroy the judicial system. Unless appellate judges support the authority of trial judges to maintain order, justice will be denied to everyone—but most especially to the American people, whose interests seemed to be forgotten in Monday’s hearing before the D.C. Circuit.  

Reader Comment of the day.

          Reader Lynell posted the following Comment about Rosalynn and Jimmy Carter on Monday:

On the way back from an overseas trip aboard Air Force One, First Lady Rosalynn Carter vacated her chair and sat at the feet of President Carter so that I would have a chair to sit on in order to stenotype the President's remarks at a briefing to the press pool of reporters. I wanted to object to her gesture, but realized there was no other option in the small room we were afforded. People Magazine published a photo on their cover page of First Lady Rosalynn Carter on the floor between her husband and me. I do not know what I would have done had she not humbled herself on my behalf. Rest In Peace, Mrs. Carter.

A link to the photo of First Lady Rosalynn Carter sitting on the floor so Lynell could transcribe President Carter’s remarks is here: Business Insider | President and First Lady Carter

Concluding Thoughts.

          Current events are making it difficult to navigate my inbox and the Comment section. I find that I write—and then delete—about 50% of the responses I draft. I am trying to be better at discerning whether readers want to discuss current events or simply want to make a statement and aren’t interested in a response. If it’s the latter, the better part of discretion is to listen (or read) and move on.

          And any statement that begins with “I am surprised that you . . . .” or “I am disappointed that you . . . .” doesn’t get a response. (A close variant is, “How can you believe / state . . . .”) If you want to persuade or inform someone, starting the conversation with a note of disapproval is not a winning strategy.

          Why am I sharing this with you? Because many readers will face some version of my inbox and Comment section during the holiday celebrations this week. Disengaging from conversations is more difficult in person, but it may be the better strategy. Whatever happens at your holiday celebration, odds are vanishingly small that your family will solve the problem of peace in the Middle East over dinner. But you might cause rifts that will take years to heal.

          We should not avoid difficult topics entirely. Far from it. But the upcoming holiday is one that gathers family members who may see each other only once a year—not an ideal setting for difficult, complicated, nuanced discussions.

          So, if someone says something that begs for a correction, rebuke, or response, carefully draft an articulate reply in your mind and then delete it. If the subject is truly important and deserves a thoughtful reply, the opportunity to do so will present itself again in a more controlled, less fraught situation.

          Talk to you tomorrow!