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The Supreme Court delivered yet another crushing blow to voting rights on Tuesday night, issuing a 6–3 decision over the shadow docket that allows the state of Alabama to eliminate a congressional district currently held by a Black Democrat. In an unsigned opinion, the Republican-appointed justices dismissed a district court’s finding that the state had intentionally discriminated against Black Alabamians in violation of the 14th Amendment, weaponizing their recent decision in Louisiana v. Callais to also make most constitutional voting rights claims impossible to win. Their decision allows Alabama to implement a racist map that wipes out Black representation, hands Republicans another seat in the House of Representatives, and sows chaos and uncertainty for voters in the midst of an ongoing primary.
On a pop-up Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discuss Tuesday’s ruling and how it exposes Callais’ disingenuous assurances that the court remains committed to multiracial democracy. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: The Supreme Court seems to be telling lower courts that it doesn’t matter what they think the vestiges of the Voting Rights Act or the 14th Amendment protect after Callais. Instead, these courts need to read the justices’ minds and understand what they’re really saying, which is that it’s all gone.
Mark Joseph Stern: This decision sends the very clear message that Callais didn’t just weaken the VRA. It stands for the proposition that there are no more Black voting rights, so courts should never, ever try to protect racial minority groups who are targeted for electoral disadvantage because of their skin color. The only kind of race discrimination in voting that this court will guard against is when states give “too much” political representation to Black and brown communities, because that’s racist against white voters.
I want to talk about the new barriers SCOTUS has erected for plaintiffs to argue that a state has used racially discriminatory practices to constrain their votes. What would racial minority groups have to show under the new test to ever again prevail on such a claim?
The best way to answer is to tell you what wasn’t enough proof in this case for the plaintiffs to prevail. Here’s one example that Vox’s Ian Millhiser flagged: The Alabama Legislature identified several “communities of interest” when drawing this map. One of them was a community of people of European “colonial heritage.” As the district court put it, the Legislature “exalted” this “white community” and insisted that it had to be kept together in one district. Then the Legislature looked at the Black Belt, a heavily Black area of the state that has historically been subjected to horrible discrimination and segregation. And legislators decided that the Black Belt wasn’t a particularly important community of interest that needed to be kept together. So they carved it up to diminish and dilute the political power of the area’s overwhelmingly Black residents.
Now, why did these predominantly white, Republican lawmakers think it was important to preserve a community of white European heritage and not at all important to preserve a community of Black ancestry? The district court said the answer was surely racism. Yet on Tuesday, the conservative supermajority accused the district court of failing to afford the Legislature the “presumption of good faith,” which Millhiser calls the presumption of white racial innocence. The supermajority suggests that the district court should have willfully ignored this racism and just assumed there was some other, legitimate reason the legislators were preserving white communities while carving up Black ones.
After this, what must plaintiffs prove to win a voting rights case? I’m not even sure that smoking-gun evidence of racist intent by the legislator who drew the map would be enough. Maybe if the politician said, on the floor of the chamber: “I am racist, this is my racist map, and my goal is racism.” Anything short of that might not be enough to prevail anymore. There is one exception: When there is any evidence that a legislature tried to protect Black political representation, you can still win a voting rights case. The Supreme Court believes that any attempt to ensure that Black communities are well represented in redistricting plans constitutes racism against white people and will strike it down. So the new rule seems to be that white people can still win voting rights cases and Black people never can.
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It’s staggering to me that we have hundreds of pages of judicial fact-finding and unimpeachable testimony gathered by the district court. This record was profoundly, deeply scrutinized. And the conservative supermajority just bats it away while mumbling about Callais and “our colorblind Constitution.” That is beyond shocking.
And this was a three-judge district court that included two Donald Trump appointees. They felt compelled to call out Alabama as it tried, over and over again, to discriminate against Black voters. They tried to stand up for multiracial democracy and the rule of law in the face of the state’s defiance. It was deeply insulting for the Supreme Court to dismiss them by suggesting that they had conjured phantoms of racism that don’t really exist.
Sotomayor’s dissent comes awfully close to calling the Republican-appointed justices a bunch of flagrant liars. What is her charge here? What’s she inching up to saying? And am I correct that this particular passage really exposes the ruse?
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I think so. Sotomayor points out that in Callais, Justice Samuel Alito claimed that his majority opinion was only laying out a test for the Voting Rights Act, not the Constitution. And when Justice Elena Kagan wrote in dissent that it sounded as if he was imposing a discriminatory-intent test that required smoking-gun evidence of racism, he insisted that he wasn’t. Well, now SCOTUS has applied Callais, a statutory case, to the 14th Amendment racial-discrimination claims that the plaintiffs brought here. So it imports Callais’ impossible standards into the equal protection clause. And then it does exactly what Alito told Kagan the court wasn’t going to do, which is to impose an incredibly rigid, impossible-to-win intent test on all claims of racially discriminatory gerrymandering.
Sotomayor chronicles this betrayal pretty bluntly. She writes: “It is hard to see how the district court’s finding of discriminatory intent under the Fourteenth Amendment could have departed from an opinion that purported to say nothing about how to find discriminatory intent under the Fourteenth Amendment.” And she adds: “The court’s apparently oblivious insistence to the contrary today cannot be squared with what Callais said on its face just over one month ago.” I do think she’s calling the supermajority liars. But she’s also drawing our attention to the whole ruse here. The Republican-appointed justices promise they’re not doing the big, awful thing that the dissenters fear. Then, over the shadow docket on a Tuesday night, they do exactly that. And they don’t even try to justify going back on their word. If you can’t trust these justices to stand by what they said one month ago, when can you trust them to be telling the truth? I think the answer is never.
