from the just-garden-variety-racism dept
I will continue to make the case for a 100 Justice Supreme Court because we need to get to the point that no single Supreme Court Justice matters. As it stands, each individual Justice has way too much power, and when they go mad with it, they can undermine the very structure of democracy. And while I’m sure some people will insist this is sour grapes about cases not going the way I want, it’s not that. I can accept rulings I disagree with, where I can see and understand the Constitutional logic behind them. For example, while I agree that the post-Citizens United change in campaign finance has been disastrous and needs to be fixed, I think the actual ruling in that case is not just defensible, but correct on the law (i.e. I think the fixes to campaign finance should come from elsewhere, not from getting rid of that ruling).
Similarly, while the underlying hatred and bigotry animating the decisions in 303 Creative and Chiles v. Salazar are deeply problematic, the actual rulings make some level of Constitutional sense on First Amendment grounds.
But the Roberts Court keeps handing down rulings that have no basis in any actual Constitutional principles, and are instead very clearly ideological and results-driven approaches to deciding cases. The Dobbs decision on abortion, most famously, but also (obviously) Trump v. US in which the Supreme Court effectively ruled that Trump could violate any law he wanted while President. And now we can add to that Louisiana v. Callais, which effectively brings back Jim Crow segregation and turns the Fifteenth Amendment into a dead letter.
If you want deeper analysis on just how fucked up this ruling is, I’ll point you to voting law expert Rick Hasen’s writeup in Slate, where he calls it “the worst ruling in a century.” But even more useful is his follow-up piece on just how cowardly Alito’s reasoning is:
In Callais, Alito purported to overturn no precedent, claiming he was merely “updating” a framework that the Supreme Court constructed in the 1986 Thornburg v. Gingles case to determine when a redistricting plan violates Section 2 of the Voting Rights Act by diluting minority representation. This follows his 2021 majority opinion in Brnovich v. Democratic National Committee, where he purported to provide mere “guidelines” for determining when a state violates Section 2 in passing a law related to voting or voter registration.
In both cases, however, Justice Alito made it impossible for plaintiffs to win their cases, leaving Section 2 on the books, but essentially toothless. Since Brnovich, as I showed in a recent law review article, no plaintiffs have brought successful suits under Section 2 challenging a law alleged to suppress votes. Justice Elena Kagan’s exasperated dissent in Callais cited this research and rightly predicted the same fate for redistricting claims under Section 2: “The consequences are likely to be far-reaching and grave. Today’s decision renders Section 2 all but a dead letter.”
But I want to focus on something a bit different, which is just how hypocritical many of the recent decisions are. The supposedly “conservative” Justices contradict themselves over and over again to reach the motivated result they are seeking. We’ve already seen some of this in other rulings, such as when the court decided that nationwide injunctions by district courts were bad… but only when they were used against Trump (after blessing many against Biden).
In Callais we see more of the same. Remember, just two years ago in the Loper Bright case, this same Supreme Court pretended to stand on principle against the administrative state by arguing that the executive branch had way less power than it had previously suggested in its old Chevron case, arguing that the power of Congress to define things rather than delegate decisions is key. Well, the Fifteenth Amendment explicitly says that “Congress shall have the power to enforce this article by appropriate legislation” in order to make sure that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race….”
So in one case it’s left for Congress to legislate to clarify governmental power, and in the other Justice Alito and the other conservatives on the Court have decided they can take that Constitutionally granted power away from Congress — not based on any actual Constitutional reason, but because they’ve concluded that racism is over. That’s literally the crux of Alito’s argument, in which he notes that:
By 2004, the racial gap in voter registration and turnout had largely disappeared, with minorities registering and voting at levels that sometimes surpassed the majority. Black voters now participate in elections at similar rates as the rest of the electorate, even turning out at higher rates than white voters in two of the five most recent Presidential elections nationwide and in Louisiana.
Of course, this is both highly misleading and beside the point of what the Constitution actually says in the Fifteenth Amendment, which gives that power to Congress to decide. It’s misleading because he cherry-picked “two of the five most recent” elections to obscure the fact that it wasn’t true in the last three — elections that occurred only after the Court had already hollowed out the rest of the Voting Rights Act.
As we discussed last year in the Texas redistricting case, the Supreme Court has made it clear in previous rulings that it’s totally legal to gerrymander for partisan reasons, just so-long as it’s not explicitly for racial reasons. The problem in Texas was that its legislature had initially rejected the (already flimsy and obviously pretextual) partisan reasons for redistricting until the Trump DOJ threatened them over the racial makeup of districts, leading to the last minute decision to redistrict, solely in response to the warning about the racial makeup of districts from the Trump admin. The lower court (in a ruling issued by a Trump appointed judge) found that to be a violation of the Fourteenth and Fifteenth Amendments.
But, bizarrely, this Supreme Court also tossed out that ruling on the shadow docket (naturally) in December, claiming it had to do this because it was too close to the election in Texas to toss out the redistricted maps… even though the election was many months away and the “redistricted” maps had only been created a few months earlier. Literally none of it made sense. That ruling was just a stay to allow the redistricted maps for the 2026 midterm elections, but the case technically continued over whether or not there could be an injunction against the maps.
In an absolutely bizarre ruling on Monday (right before this Callais ruling) the Supreme Court effectively further rejected the challenge to Texas’ redistricting by simply citing its original shadow docket ruling, even though (1) the issue before the court now is different and (2) that original shadow docket ruling was based on no significant briefing or oral arguments. Court watcher (and shadow docket coiner/criticizer) Steve Vladeck notes that this is a dangerous power grab by the court:
I can’t remember a prior case with this kind of (true) summary reversal—where the Court just reversed a three-judge district court on the merits without any detailed explanation.
The original (already questionable) order was procedural, and apparently deemed necessary due to the “emergency” nature of an election that wasn’t happening for months and for which there was plenty of time to adjust. But to then claim to rule on the merits of the case by simply pointing back to that other emergency ruling, without more detailed briefing and without explanation, is bizarre.
But remember: the stated basis for the December ruling was the supposedly imminent 2026 midterm primaries. And then look at what happened in Louisiana after the Callais decision, where Governor Jeff Landry literally declared a “state of emergency” to suspend the already ongoing primary election in order to initiate redistricting, based on the Callais ruling.
So if you’re playing along at home, in Texas they redrew the Congressional maps in August of 2025 for blatantly racial reasons (as called out by a Trump-appointed judge in November, who provided a ton of evidence). In December of 2025, the Supreme Court said that those racially-biased new districts had to stay because it was too close to the 2026 midterms (which were still months away) to try to redistrict (despite the ability to easily go back to the pre-August districts which were the existing districts). But now, in late April, based on this new Supreme Court ruling, Louisiana can magically stop elections in which voting has already occurred in order to redistrict to create more racist gerrymandering.
And all this because Alito and Roberts are happy to literally ignore the Fifteenth Amendment when they don’t like the results.
That is what results-driven judicial decision-making looks like. And it’s why the court is viewed as increasingly illegitimate across the board.
I can live with the Court issuing principled rulings I disagree with. But here there are no principles on display beyond “we’re racist and we want to deprive non-white people of their vote.” The Supreme Court makes it clear that it is illegitimate with such a move, and not worthy of any respect at all.
And that won’t change until we get real reform, such as by shifting the Court so that no single Justice (or small clique of Justices) has so much power.
Filed Under: 14th amendment, 15th amendment, callais, constitution, discrimination, john roberts, louisiana, motivated reasoning, racism, samuel alito, supreme court, voting rights, voting rights act
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