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Opinion Supreme Court invites Republican legislators to go nuts

Supreme Court Justice Brett M. Kavanaugh. (Calla Kessler/The Washington Post)

In 2019, the Supreme Court ruled that it has no power to do anything about partisan gerrymandering, allowing states to gerrymander to their hearts’ content. But at the time, it clarified that it could still strike down racial gerrymanders, since drawing district lines that have the effect of eroding the power of minority groups would violate the Voting Rights Act.

But now the court may have cleared a path to potentially harming African American voters in another way, by further diluting their prospects for electing preferred candidates, though we can’t be sure how this will turn out.

Combine the Alabama case on which the court just ordered a stay with its decision to allow Texas’s abortion vigilante law to go into effect — all but outlawing abortion in the second largest state, Roe v. Wade be damned — and you can see the emergence of a new kind of political/legal process. It’s one Republicans will increasingly deploy to remake the landscape of U.S. law.

Here’s how it works:

  1. A Republican state legislature passes an obviously and unquestionably unconstitutional law.
  2. The Supreme Court uses its “shadow docket” to allow the law to remain in place for an extended period, nullifying the existing constitutional order in one state.
  3. Eventually, the court issues a sweeping order taking the changes nationwide — but since everyone saw it coming, it may not seem as radical as it might have, and in any case the court doesn’t really care what anyone thinks.

In the Alabama case, the GOP-run state legislature created a congressional map that packs many of the state’s Black voters into a single district. Though they make up 27 percent of the state’s population, African Americans have a remote chance of winning in only one of the state’s seven congressional districts. In Alabama, voters are highly divided by race; according to exit polls, 77 percent of Whites in Alabama voted for Donald Trump in 2020, compared with 55 percent in the country as a whole.

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After a lengthy trial, a three-judge panel found that the map discriminated against the state’s Black voters in violation of Section 2 of the Voting Rights Act and ordered the state to produce a new map. That panel was made up of one judge appointed by Bill Clinton and two appointed by Trump, suggesting the legal judgment was clear.

Alabama appealed to the Supreme Court, where five justices issued a stay nullifying the lower court’s ruling, allowing a map that seems to clearly violate the Voting Rights Act to remain in place. They also accepted the case for a full hearing and judgment later on, but the stay came through what is now known as the “shadow docket,” where increasingly consequential rulings are issued on an emergency basis.

Justice Brett M. Kavanaugh, writing for the majority, said that it was too close to the election later this year, so the court simply had to intervene on Alabama’s behalf.

Even Chief Justice John G. Roberts Jr., the architect of the court’s long assault on voting rights and the author of its 2013 decision gutting other sections of the Voting Rights Act , was unable to justify what his conservative colleagues did. In a brief dissent, he wrote that while he agreed with the decision to take the case for a full consideration — signaling that he looks forward to driving another stake into the heart of the Voting Rights Act — “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”

But the other five conservatives felt free to intervene. As Justice Elana Kagan wrote in dissent, “Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.”

When it allows clearly unconstitutional or otherwise problematic state laws to remain in place, the court not only creates sweeping de facto change for temporary periods, it also sends a message to Republican state legislatures that nothing is off the table.

Is there a constitutional right you’d like to eliminate, a federal law you find displeasing, an outrageous fantasy you’d like to turn into reality? Pass a law making it happen, no matter how crazy, and there’s a good chance we’ll let it stand, at least for a while. And after that, who knows?

To be clear, this isn’t a conspiracy — it’s not as though Kavanaugh or Justice Samuel A. Alito Jr. is calling up Republican state legislators and saying, “Hey, why don’t you pass a law doing this obviously unconstitutional thing so we can go to town on it?” And there have long been test cases filed with the intent of spurring the court to carve out new rights or overrule prior cases.

But we’re embarking in a new era, in which a radicalized Republican Party meets an unusually aggressive Supreme Court majority eager to reimagine the whole scope of American law. And with six conservatives, conservatives have a margin of error that allows them to indulge their wildest policy ambitions.

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