The Supreme Court was at the center of two significant stories today: The oral argument on Alabama’s challenge to the Voting Rights Act of 1965 and Trump’s appeal of the 11th Circuit’s reversal of Judge Cannon’s order regarding classified documents. In both cases, the legitimacy of the Court is on trial, even though the stakes at issue in the two cases are substantially different. If the Court is remotely interested in stopping the freefall of the public’s trust in the Court, it will adhere to well-established precedent in both cases. If it does so, the Court will reject Alabama’s challenge to the Voting Rights Act and refuse Trump’s request for relief. If it does anything else, it will accelerate the death spiral of the tattered remains of the Court’s legitimacy.
Let’s deal with the easier case first: Trump’s appeal of the 11th Circuit reversal of Judge Cannon’s order regarding classified documents. Trump’s emergency application was filed with the Supreme Court Justice with oversight of such appeals from the 11th Circuit—Justice Clarence Thomas. Thomas should have summarily rejected the application for emergency relief or recused himself. He did neither. Instead, he ordered the DOJ to file a response next week—a bad move that will only exacerbate Thomas’s reputation as a corrupt and incorrigible justice.
Putting those annoying facts to the side, Trump’s request for relief is extraordinarily narrow and, if granted, would not impede the DOJ’s criminal investigation. Trump seeks an order to include the classified documents in the special master review. Trump did not request that the DOJ be enjoined from using those documents in its criminal investigation. The brief is here: Application for Stay. An excellent analysis (recommended by Professor Tribe) is included in this Twitter thread by Steve Vladeck, who makes the following points:
Critically, [Trump] is not arguing that the 11th Circuit was wrong to stay that part of Cannon’s order that enjoined DOJ from using those documents. So, the relief he’s seeking wouldn’t stop DOJ from continuing to do whatever it’s doing.
To vacate a lower-court stay, Trump also has to show that the stay is causing him irreparable harm (harm that justifies [the Court’s] emergency intervention).
[T]his is what’s most conspicuously absent from his application: Any argument about how the stay, by itself, is harming Trump in a way that can’t be ameliorated later. Without meeting that criterion, Trump can’t make out the “procedural” case for the relief he’s seeking.
In short, Trump has failed to make any showing that he is entitled to emergency relief, and his application should have been denied before the ink was dry on his brief. It’s that simple. If Thomas or the other justices give Trump an iota of relief, they will cover themselves in (even greater) dishonor and disgrace.
Even if the Court has the sense to avoid ignominy by granting Trump relief, it appears to be on a collision course with utter debasement in Merrill v. Milligan, which is Alabama’s invitation to the reactionary majority to finish off the Voting Rights Act of 1965.
Merrill v. Milligan is a complicated mess, so let me distill the likely outcome to its essence and then fill in some salient details. Alabama used racial gerrymandering to reduce the number of congressional districts with a majority of Black voters from two-of-seven to one-of-seven districts. Having used race to dilute Black voting strength through gerrymandering, Alabama now claims that federal courts cannot consider race in fashioning a remedy under the 1965 Voting Rights Act. (How’s that for hypocrisy, not to mention chutzpah!?)
Based on questioning during oral argument, it appears that the Court will find a way to uphold Alabama’s racially gerrymandered districts without completely gutting Section 2 of the Voting Rights Act—as explained by Ian Millhiser in Vox, Supreme Court will likely weaken, not destroy, the ban on racial gerrymandering in Merrill v. Milligan.
As explained by Millhiser, it appears that Roberts and Barrett will uphold the current districts based on the fact that incomplete computer simulations of re-drawn districts did not always produce two or more Black majority districts. The plaintiffs’ experts explained that their computer models were incomplete and did not account for all race-neutral factors, including keeping communities of interest together. That important qualification will be left as roadkill in the rearview mirror of the reactionary majority’s rush to validate Alabama’s obviously racially gerrymandered district lines.
In the end, the reactionary majority will find a way to validate contorted congressional districts drawn for the purpose of diluting the voting power of Blacks in Alabama—and effectively up-end forty years of established precedent that, as Justice Kagan said, makes this case a “slam dunk” for the plaintiff voting rights groups. The only way to stop the reactionary majority in the next few decades is to expand the Court, now.
More on Justices Jackson and Breyer.
Yesterday, I noted the praise for Justice Jackson’s effective cross-examination of counsel during oral argument on Monday. By all accounts, she was even more masterful today. See Ian Milhiser’s article above for a description of her brilliant commentary during the Merrill v. Milligan hearing. See also, Talking Points Memo, Jackson Turns Originalism Against Conservatives To Argue For Minority Voting Protections. In praising Justice Jackson yesterday, I quoted from an article in Slate that compared Justice Jackson’s “fast-paced and adroit” examination to the lower-key approach of her predecessor, Justice Breyer.
At least one reader interpreted that comparison as a criticism of Justice Breyer. It was not. Justice Breyer was universally acclaimed as a brilliant, fair, and scholarly jurist (who also happened to be a progressive). Justice Breyer’s style was appropriate for the era in which he served. But as the reactionary majority pivots to fact-free and precedent-free jurisprudence, Justice Jackson’s style is necessary to expose the hypocrisy and cynicism of justices who seem more interested in spouting misleading soundbites than upholding the rule of law. The fact that Justice Jackson’s style is suited to counter the newly emergent reactionary majority takes nothing away from Justice Breyer’s distinguished legacy.
The Herschel Walker abortion cover-up story.
There are many aspects of the Herschel Walker abortion cover-up story, but the immediate concern is whether it will hurt his candidacy for US Senator from Georgia. Walker’s candidacy may survive the scandal, but his outright denial of the story against clear evidence to the contrary appears to be a political mistake. Reporters love nothing more than catching candidates in a lie, and there is plenty of opportunity to do so here.
As explained in Politico, the story of Walker paying for an abortion was well-known in political circles in Georgia for months. See Politico, Walker’s team knew of an abortion allegation months before it surfaced. Walker’s political advisers apparently hoped that the story would not surface and if it did, that Walker’s candidacy could survive the scandal the way he has survived scandals involving domestic violence, multiple “secret” children, and mental illness by admitting the facts and talking about football. But by issuing an outright denial and threatening to sue The Daily Beast, Walker has issued an invitation to every political reporter to become the new “Woodward and Bernstein.”
Putting aside the hypocrisy and double standards of Walker’s defenders, Walker’s lack of honesty may be the last straw for thousands of voters in a closely divided electorate. Stay tuned—there may be more revelations coming!
Putin’s war on the Ukrainian people.
Ukraine appears to have turned the tide of the war and is advancing on multiple fronts in the illegally annexed provinces. The Russian retreat is so hasty they are leaving their deceased comrades in the streets and abandoning equipment. But perhaps the most debilitating effect is that Russia’s military command and nationalist blogger community hve begun fracturing and finger-pointing over responsibility for the losses. And the national mobilization continues to be a SNAFU of imperial proportions. All of this is explained in detail in The Institute for the Study of War, Russian Offensive Campaign Assessment, October 4.
None of this means that the war will be over soon or that Putin will simply give up. Indeed, as TCinLA said in his Substack blog, “The war is not existential for Russia, but it is for Putin: He wins or dies.” As a result, Putin may make increasingly belligerent and dire threats. Whether he or his generals will actually carry them out is a different question. But we should view his threats as a sign of desperation and panic, not strength.
Airlift Fund event on Thursday.
As a reminder, I will be joining Airlift Fund next week for its Airlift Fall Event Series: Live From the Frontlines on Thursday, October 6, 2022 at 5 pm PT / 8 pm ET. Airlift is an all-volunteer fundraising organization that believes in year-round grassroots organizing in battleground states. Register here.
Concluding Thoughts.
There is so much more to discuss, but I have committed to keeping the newsletter to are reasonable length. Heather Cox Richardson has covered the Oath Keepers trial and Trump’s increasing jeopardy in the theft of national defense secrets. See Letters from an American, October 3, 2022.
One of the anchors for my optimism is that America is on a path to becoming more urban, educated, and diverse—and there is nothing Republicans can do about that fact. I do not raise this point to say that Democrats can rely on demographics to defeat MAGA extremism. Instead, I raise it to say that the increasing urbanization, education, and diversity of America will make it more difficult for white conservative legislatures to maintain their power through racial gerrymandering. At some point, the math simply won’t support the maintenance of majority-white congressional districts.
This point became clear to me (again) as I was researching the facts surrounding Alabama’s gerrymandered districts at issue in Merrill v. Milligan. As background, it is helpful to keep in mind that congressional districts are of equal size nationally and that states receive or lose districts as their population percentage of the US grows or shrinks. With those facts in mind, let’s look at what’s happening in Alabama.
In 1930, Alabama had ten congressional districts; it now has seven—a reflection of its slower growth compared to other states. In the 2020 Census the number of whites in Alabama decreased.
Let me repeat that fact: The absolute number of whites in Alabama decreased—not merely their percentage of the state’s population. See Alabama.com, Alabama’s white population dropped in latest Census as state grows more diverse. Deaths exceeded births in most rural counties in Alabama over the last decade. The growth in Alabama over the last decade has been driven by domestic migration into urban areas. While the absolute number of whites in Alabama has been shrinking, the absolute number of Blacks and Hispanics has been growing.
Here’s my point: It will become nearly impossible for the Alabama legislature to cram enough white voters into six majority-white congressional districts after the 2030 Census. Demographic change will make it more difficult for the Alabama legislature to use racial gerrymandering.
Of course, Democrats cannot assume that the growing populations of Black and Hispanic voters will automatically vote for the Democratic Party. But at least the Democratic Party will be able to seek voters on a more even playing field. That is why the Alabama legislature is fighting tooth and nail to preserve their attenuating grip on power.
The same dynamic is repeating itself across America. Over time, the profound unfairness of racial gerrymandering will collapse under the inexorable laws of math and statistics. The rest will be up to us. We should gladly accept that challenge—and take heart from the fact that America’s trajectory is trending towards a more educated, diverse, and urban electorate. We can’t ask for anything more.
Talk to you tomorrow!
"One of the anchors for my optimism is that America is on a path to becoming more urban, educated, and diverse—and there is nothing Republicans can do about that fact. I do not raise this point to say that Democrats can rely on demographics to defeat MAGA extremism. Instead, I raise it to say that the increasing urbanization, education, and diversity of America will make it more difficult for white conservative legislatures to maintain their power through racial gerrymandering. At some point, the math simply won’t support the maintenance of majority-white congressional districts."
Oh but they will! Given the nature of political organization in America, where 44milion Californians have the same number of senators as 750,000 citizens of Wyoming do, the "increasing urbanization" will have the "educated and diverse Americans" in fewer and fewer bigger and bigger places, while those who remain back in Flyoverville will have an easier and easier time electing the anti-urban reactionaries they want.
You might want to go read some English history on the Rotten Boroughs and the (literal) battle to get to the Reform Act of 1832. Look up "Peterloo." It literally took a second English Revolution to make that change.
Unfortunately, given the rigidity of our political organization through the Consititution, the only way we could accomplish something similar would be through an Article V Convention, which is fraught with even more danger than things remaining as they are, since the organization of that will give a state of 750,000 the same number of votes to change the constitution as a state of 44million.
"...as the reactionary majority pivots to fact-free and precedent-free jurisprudence, Justice Jackson’s style is necessary to expose the hypocrisy and cynicism of justices who seem more interested in spouting misleading soundbites than upholding the rule of law."