Dem
47
GOP
53
Early in my first semester of law school, my constitutional law professor asked me this question: "Do you love the law?" At the time, I had no idea what he was talking about and thought the question ridiculous—what does it mean to "love the law?" It was only much later in my career, and especially when I began my work in government, that I understood the question and also knew the answer: a resounding and fervent "Yes, I love the law."
We often hear the expression that we're a nation of laws and not of men. But we rarely dig into that expression to understand why that must be so in a functioning democracy. Obviously, one goal is that everyone plays by the same rules and no one is above the law—though that concept is being sorely tested at the moment. But more fundamentally, the rule of law provides the framework that underpins our democracy. Democracy is messy and inefficient by design—majority rule is not neat or easy to implement. So, we need some structure and a foundation upon which the policies and goals of the majority can be built, as well as guardrails so minority rights aren't trampled in the process. The Constitution provides that basic foundation and sets the outer perimeters of the federal government's powers and then limits all governmental power when it comes to basic human rights like free speech, freedom of religion, voting rights, freedom from discrimination, etc.
The Supreme Court, in Marbury v. Madison, gave itself the power to determine which governmental actions run afoul of those Constitutional limits. But other than that, SCOTUS was really supposed to be a minor character in our democracy's story—it was meant to act in a restrained way, since it was an anti-majoritarian body of nine Justices largely unaccountable to the people. Along those lines, it created certain long-standing precedents and guardrails to prevent overreach by the courts, such as a presumption of legislative reasonableness and a reluctance to wade into constitutional issues if a case could be decided on other grounds. The Court recognized that stability and predictability in the application of the laws was critical to the judiciary's credibility and to the public's trust, whose participation and buy-in is necessary to a functional legal system.
In our nation's history, we've certainly had Supreme Courts that have abused their power. During the Lochner Era, for example, the Court was firmly aligned with wealthy industrialists and saw its role as helping them consolidate power. Any acts of Congress that attempted to regulate business practices, such as minimum wage laws or child labor laws, were struck down as beyond Congress' power under the commerce clause, or a violation of substantive due process. Ironically, in his confirmation hearings to become Chief Justice, John Roberts said: "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." (Apparently, he saw that as a feature not a bug.)
And the Court has played a large and shameful role in perpetuating race discrimination in this country through the Dred Scott v. Sandford and Plessy v. Ferguson decisions. But given its decimation of basic foundations of the rule of law and civil rights guaranteed by the Constitution, particularly since Donald Trump has been in office, the Roberts court could, and very rightly should, be viewed as the most unethical, unscrupulous and arguably racist court in U.S. history. They are willing to do whatever it takes to get the political result they want.
Before getting to this latest atrocity, with more undoubtedly on the way as they continue to shred the foundations of our democracy this term, it's important to point out that the Roberts court has worked for decades to deliberately roll back the rights of certain Americans and to bestow special rights on others. To be clear, Roberts has been playing the long game—arguably, Trump is a product of these carefully calculated moves and is now merely a tool to continue the "progress" the Court has made.
Here at Electoral-Vote.com, we try to avoid hyperbole and, as much as possible, look objectively and dispassionately at court decisions, understanding that many times they are more nuanced than the headlines suggest. But this time, it's even worse than the headlines, which are hard to find in the first place and are decidedly understated. This is partly due to the fact that the Court dropped this nugget not only on the shadow docket, but also at 9:00 p.m. ET on a day when they knew the media would be otherwise occupied with primary election coverage. And it largely worked because the news was pretty well buried in most outlets, including major media like The New York Times. That's a pretty good indication that Roberts & Co. understand very well that this is all pretty sleazy.
But we will give the decision the attention it deserves, as painful as that is. To start, let's recap how we got here. The Court majority essentially teed up this outcome on May 11, when it meddled in Alabama's elections a week before their primary on May 19. The Court vacated the lower court's order enjoining Alabama from using an illegal map and directed the lower court to reconsider its decision in light of the Supreme Court's decision in Louisiana v. Callais. A 3-judge panel (consisting of two Trump appointees) had determined that the map, which Alabama drew in 2023 and which has never been used, was intentionally racially discriminatory in violation of the 14th Amendment.
The effect of the May 11 one-paragraph order on the shadow docket rewarded the state's deliberate violation of the panel's ruling in drawing the 2023 map and allowed (and even encouraged) Gov. Kay Ivey (R-AL) to postpone the Congressional primary to see if the state would be able to use the discriminatory map. Remember, this 2023 Alabama map has never been used before. A court-drawn map was used in 2024 and continued to be used in preparation for the 2026 elections. So, election officials had prepared ballots and registered voters under the court map and candidates had filed and campaigned to run in a May 19 primary in the same districts as before in 2024. One week before Election Day, the Court jumped in and threw all that into chaos. What was that again about issuing orders so close to an election? Oh right, if Republicans stand to benefit from the Court's meddling, then it's never too late to get involved.
And now we have the most recent example of the Court's hypocrisy and abuse of power. After vacating the lower court's ruling and instructing the panel to reconsider its ruling, the same panel (again, with two Trump appointees) dutifully reviewed all the evidence, which consisted of an 11-day trial with testimony from 51 witnesses and over 800 exhibits that culminated in a thoughtful and thorough 268-page opinion. After its review in light of Callais, the panel concluded that its decision was unchanged because it had found evidence of intentional discrimination under the 14th Amendment, and not just a violation of Section 2 of the VRA.
But on June 2, in yet another insulting and unsigned 4-page order, the Court's majority simply brushed all that aside, vacated the lower court's decision yet again, and admonished the panel for not following its instructions. Apparently, the panel should have known what its marching orders were and simply ignored all the evidence submitted over 11 days and its exhaustive analysis finding intentional discrimination and should have rubber-stamped Alabama's new map.
It's hard to pack so many logical inconsistencies and violations of its own rulings in a 4-page document, but somehow this Court managed to do it.
First, the Court completely ignores the fact that it upheld the lower court's ruling striking down Alabama's map just 3 years ago in this same case, Allen v. Mulligan, and agreed with its reasoning and the remedy the court ordered to draw a second majority-Black district. The 2023 map that Alabama drew in response deliberately defies that court order because, as with the illegal map, it, too, only contained one majority-Black district. But now, the Court says that this map is not a violation of the court's order but merely a "legal disagreement with the court's earlier remedial order" that the court is erroneously interpreting as "discriminatory animus." Setting aside the fact that intentionally violating a court order generally indicates some animus, the Court ignores the mountain of other evidence of "discriminatory animus" and implies the panel was simply acting in a fit of pique by striking down the 2023 map. So, apparently, one can ignore court orders if it's framed as a "legal disagreement" that can be sorted out through more litigation.
Second, in Callais, the Court did not overturn its decision in Allen v. Mulligan, which upheld the panel's decision striking down Alabama's original map. Instead, the Court has done a kind of bait-and-switch because, in the interim, it designed a test for intentional discrimination that can never be met. So, the Court has always intended that whatever map Alabama came up with in response to the lower court's order, even if it was intentionally based on fake criteria and made-up data to discriminate against non-whites, and resulted in the same type of districts that were struck down before, won't violate section 2 of the Voting Rights Act.
Third, it's even worse than that. The Court went even further than Callais, because that case didn't directly address violations of the 14th Amendment at all. As Associate Justice Sonia Sotomayor points out in her dissent, which was joined by Associate Justices Elena Kagan and Ketanji Jackson and is well worth reading (click on the link above), the remedial map Alabama devised was even worse than the original. The panel found that Alabama had not only not remedied the past violation, but had made it impossible to do so. As a result the panel concluded that "Alabama had violated the Fourteenth Amendment by entrenching racially discriminatory vote dilution and permanently enjoined Alabama's 2023 Redistricting Plan." Sotomayor points out that "Callais [did not] alter the analysis for intentional-discrimination claims under the Fourteenth Amendment." So, the standard of review should have been whether there was clear error by the district court, which is a fairly deferential standard. And there's more than enough evidence to support the finding of discriminatory intent, but the majority does not address that at all. Speaker of the Alabama House Nathaniel Ledbetter (R) understood the game, as he dismissed the court's order to draw a remedial map: "If you think about where we were, the Supreme Court ruling [in Allen] was five to four," he noted. "So there's just one judge that needed to see something different." Somehow, Alabama legislators knew that SCOTUS had their back.
Finally, in what can only be described as unmitigated gall, the Court admonishes the panel that "We have repeatedly cautioned that lower federal courts should not 'alter the election rules on the eve of an election.'" But it was the Supreme Court who altered the election rules on the eve of an election by creating this chaos in the first place! And they instructed the panel to reconsider its decision, which it did! Why did the Court put the panel through this ridiculous charade when the outcome was so obviously a foregone conclusion? If we were district court judges, we would stage a revolt. This is absolutely outrageous.
This Court has just gotten more brazen in its nakedly partisan rulings to keep Republicans in power. We'll see if it works in these midterms, but if both the House and Senate flip, the Democrats need to screw their courage to the sticking place and get serious about Supreme Court reform. The easiest path is simply to remove appellate jurisdiction for any constitutional questions from the Supreme Court and set up a separate court to hear only those issues. Enough is enough. (L)