The Supreme Court Seems to Think Discrimination Is When You Try to Remedy Discrimination

The conservative justices are scrapping Americans’ constitutional rights, all while pretending they aren’t.

Illustration of a justice with an elephant head and the Constitution text in its shadow.
Getty; The Atlantic

About the author: Adam Serwer is a staff writer at The Atlantic.

The right-wing majority on the Supreme Court continues its run of nullifying constitutional rights by shadow docket, while insisting that it is doing no such thing.

On Monday, the Court blocked a ruling—written by a panel of three federal judges, two of whom were appointed by President Donald Trump—that found that Alabama had violated the Voting Rights Act when it drew a congressional map with one majority-Black district out of seven rather than two, in a state where Black people make up more than a quarter of the population. Five of the justices disagreed with the lower court’s decision, but only Justice Brett Kavanaugh explained his rationale in an opinion joined by Samuel Alito, arguing that complying with the Fifteenth Amendment would just be too much work.

“Running elections statewide is extraordinarily complicated and difficult. Those elections require enormous advance preparations by state and local officials, and pose significant logistical challenges,” Kavanaugh wrote. “The District Court’s order would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.”

The primary is in May and the general election is in November. As the attorney Steve Vladeck writes at Slate, the Court has effectively redefined “close to an election” to apply to “all election cases,” making it virtually impossible to ever challenge racial gerrymanders that violate the Fifteenth Amendment’s protections against discriminatory voting practices before ballots are cast. If the justices were genuinely concerned about the time window, they could have pushed the start of early voting back from late March—a common solution in redistricting cases—but that wouldn’t have given Alabama Republicans the advantage they were demanding.

Why so desperate? Redistricting decisions could determine which party holds the House after the midterms. The Roberts Court’s evisceration of voting-rights protections has set off a race to the bottom, in which both Democrats and Republicans are attempting to election-proof their districts in states they control. This is horrible for democracy, because it leads to politicians ignoring their own constituents, who in turn have little recourse against lawmakers for doing so. It is also the system conservative activists wanted, and the one the right-wing justices ushered into being.

“When Kavanaugh says that the challenge is too close to the election,” the legal journalist Elie Mystal writes at The Nation, “he means that literally any challenge to any new, racist state districting map cannot be heard until at least one election cycle has taken place under the racist maps.” Convenient if you’re a Republican trying to win back the House.

Over the past few years, the Supreme Court’s emergency docket, once simply a necessary means to issue rulings on time-sensitive matters, has become a kind of drive-through window for conservative plaintiffs to get the Court’s right-wing majority to rewrite the Constitution. Instead of waiting for cases to reach them through regular procedure, the right-wing justices have taken to nullifying constitutional rights by emergency order when conservative plaintiffs give them the opportunity. Just as last year’s ruling in the Texas abortion-ban case sent the message to other states that they are free to ignore Roe v. Wade, the legal precedent guaranteeing the right to an abortion, this ruling communicates to Republican legislators that the Voting Rights Act’s restrictions on gerrymandering their nonwhite constituents into political irrelevance will no longer be enforced. In both cases, for those affected, these rights continue to exist only in a symbolic sense, and in both cases, the majority pretended to be bound by procedure when they were simply indulging their own ideological preferences.

The observation that the Supreme Court’s conservatives have been using emergency orders to make sweeping changes to American law outside of regular procedure has aggravated the paper-thin skin of the conservative justices, who are not satisfied with rewriting the Constitution but also wish to be praised for it. “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket’ is similarly off target,” Kavanaugh writes, insisting that “the Court’s stay order is not a decision on the merits.”

Here, Kavanaugh bravely dismisses an argument that is not being made. No one is criticizing the Court for formally reaching the merits in most of these shadow-docket decisions. Its critics are well aware that the Republican appointees are using the shadow docket to approve policy changes they support while technically leaving the cases undecided. Kavanaugh’s lament is that the public has not adopted the talking points the right-wing justices have developed in order to downplay the significance and radicalism of their decrees.

The criticism, which Kavanaugh and his colleagues cannot dispute or avoid, is that the Court is consciously ignoring landmark precedents in order to signal to Republican lawmakers that they are free to violate the constitutional rights of their constituents without interference from the justices. The semantic distinction Kavanaugh is insisting on alters nothing for those whose rights are being violated. The Court’s critics and those whose rights it has nullified understand the distinction between having those rights on paper and not in practice, and properly consider that distinction meaningless.

Perhaps you think I’m being unfair. But even Chief Justice John Roberts, who once wrote an opinion invalidating a key section of the Voting Rights Act without even naming which part of the Constitution it violated, chided the majority for ignoring precedent, while nonetheless indicating his potential sympathy with Alabama’s justifications for gerrymandering Black voters into a single district. Roberts wrote that although he agreed with Kavanaugh that the law regarding race and redistricting has “engendered considerable disagreement and uncertainty,” he was dissenting because “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”

In other words, Roberts is saying that the lower court’s ruling was consistent with what the law currently is, and should not have been overturned—at least not yet. Roberts would like his more fanatical colleagues to follow proper procedure when invalidating key precedents; they, by contrast, would like to do so now, now, now.

Currently, the Voting Rights Act prevents state legislatures from seeking to weaken the voting power of minority groups in areas where voting is racially polarized by submerging them in districts where their preferences can simply be overwhelmed by white votes. So under certain conditions, legislators have to draw districts that allow minority voters to comprise a majority.

Why does that requirement exist? Why should anyone be thinking about race when drawing voting districts? Shouldn’t we all just be equal?

Well, yes, we should be. Unfortunately, we also have decades of evidence that lawmakers discriminate against minority voters in order to keep them from electing candidates they prefer, and thereby insulating lawmakers from backlash should they choose to act against those voters’ interests.

The moral and policy questions around race and redistricting can be complicated. Forty-one Black men first won congressional office during Reconstruction, and as the political scientist David Lublin writes in The Paradox of Representation, not a single one “won election from a district with a clear white majority during the 19th century.” But as Reconstruction ended, prior to the more violent and complete disenfranchisement that would follow, Democrats “adopted racial gerrymanders designed to pack black voters into one congressional district in order to minimize Republican voting strength.” That should sound familiar, because it’s what Alabama just did more than a century later, with the Supreme Court’s approval.

“First, lawmakers packed a large portion of Black Alabami­ans into the sprawl­ing, heav­ily Black 7th Congres­sional District, which joins much of the state’s historic Black Belt with parts of both Birm­ing­ham and Mont­gomery,” writes Michael Li of the Brennan Center. “For the rest of the state, map draw­ers then surgic­ally divided Black voters among the remain­ing six white-major­ity districts.”

Not every case is this clear. The Voting Rights Act’s redistricting requirements can be used to increase minority representation or turned against the communities it is meant to protect. But despite such complexities, the legal precedent is straightforward, and the majority straightforwardly ignored it to reach the outcome their co-partisans sought.

This is why Roberts observed that the lower court “properly applied existing law” while hinting that he might disagree with that law. Federal courts have developed a set of standards for assessing whether a legislature has “diluted” the vote in a discriminatory fashion. These tools demand a consideration of race that some find distasteful or uncomfortable, but they are preferable to the alternative, which is that state legislators can simply engage in such mischief without interference.

There is a lengthy history of this in Alabama, where until the 1970s, local officials in Mobile had at-large seats that prevented Black voters from electing any members of the city council. The Supreme Court’s 1980 ruling dismissing a lawsuit from Black Alabamians provoked Congress to ensure that the Voting Rights Act barred not only election practices that are intended to discriminate but also those that have such an effect, even as an unintended consequence—a policy Roberts opposed while at the Justice Department in the early ’80s. A long-standing implication of Roberts’s jurisprudence is that you should be able to get away with discrimination as long as no one can prove you did it on purpose, or if you have good enough lawyers to launder your malign intentions in legalese even after you have publicly said that you intended to discriminate.

Under the law, race cannot be the “predominant” factor in redistricting, but it can be considered. That makes sense, because there is no way to identify and prevent discrimination without being conscious of race in the first place. Alabama’s position, reflective of the conservative consensus on the subject, is that policies meant to alleviate racial inequality are themselves discriminatory. The state argued in its brief to the Supreme Court that the law does not require the state to draw “discriminatory district lines,” and described the potential alternative maps as “racially sorting Alabama’s voters, pure and simple.”

Just so we are clear: Alabama’s view is that drawing district lines to weaken the political power of its Black residents is Martin Luther King Jr.’s Dream, while adopting the proposed solution of two Black-majority districts out of seven is Bull Connor’s. This is a spurious claim that rests on a very thin reed, namely that there is no way to draw a map with a second Black-majority district without making race the primary factor and thus violating the law.

As Justice Elena Kagan noted in her dissent, however, “The legislature in this current election cycle considered at least one alternative map containing two majority-Black districts,” and “Alabama has known for quite some time that the [Voting Rights Act] may require it to draw a different map; it has all it needs to do so; and it has shown just how quickly it can act when it wants to.” But it does not want to.

If the Supreme Court ultimately adopts Alabama’s view of the law, the likely outcome will be “a radical reworking of the [Voting Rights Act] that would decrease minority representation, especially in the south,” the election-law expert Rick Hasen writes. Just as King wanted.

I have a hard time believing that anyone sincerely thinks that drawing districts that limit the political influence of Black voters in a state where Black people comprise more than a quarter of the population meets some kind of color-blind ideal. Rather, the requirements of the Voting Rights Act go against the partisan ambitions of legislators in Alabama and elsewhere, which are to draw the maximum number of safe Republican districts. Therefore, they have developed the absurd reasoning that being conscious of race for the purpose of preventing discrimination on the basis of race is morally equivalent to discriminating on the basis of race.

This does not mean that every proposal to remedy discrimination will be wise, legal, or just. But in this case, Alabama is not trying to remedy discrimination at all, but get away with it, using a fraudulent color blindness as a shield. Lucky for them, they have powerful friends.

Taking this kind of reasoning to its logical conclusion, the ideal post-racial utopia is one in which America’s traditional hierarchy of race is not only intact and unquestioned, but entirely unacknowledged. It is this vision that draws together not just the Roberts Court’s unlimited willingness to allow racial discrimination in voting, but the recent attempts to outlaw the teaching of Black history in schools and universities, and recent Republican outrage over President Joe Biden pledging to appoint a Black woman to the Supreme Court, after his GOP predecessor promised to appoint from an all-white list of candidates while running for office. It is acknowledging the existence of discrimination, or seeking to prevent it, that is the sin. Engaging in it, or covering it up, is just fine. More than fine: a Dream come true.