Precedent Be Damned
Of all the challenges to American democracy we currently face, one that hasn’t gotten enough attention is the United States Supreme Court.
To be sure, the Court is on the political radar. But a lot of the coverage and awareness focuses on the impact of individual rulings (or expected rulings) that upend the current status of the law on such issues as voting rights, affirmative action, abortion, and the ability of the federal government to regulate areas like the environment. Another line of coverage deals with the justices themselves, and trying to tease apart their whims and states of mind to handicap how they might rule.
All of this is important. But these are but individual tiles in a much larger mosaic - a mosaic I hope the national press will spend more time piecing together. What is required is to step back and see the big picture. And what one sees is deeply disturbing.
Instead of reasoned argumentation we see snap judgements. Instead of deliberation we see grandstanding. Instead of humility we see a cocky disregard for precedent. The legitimacy of the Supreme Court is wavering - some might argue it has already been debased. And with it, the larger legal system quakes with uncertainty.
The latest outrage came this past week when the Court stayed a unanimous ruling by a three-judge district court panel which said that Alabama’s new congressional map violated the Voting Rights Act by denying fair representation for Black Alabamians. The immediate effect of this is that Black residents, who make up 27 percent of the state’s population, will only be the majority in one of seven districts in the 2022 elections (and likely thereafter). More generally, it means the Voting Rights Act has been dealt another grave blow.
It should be noted that two of the three judges who ruled in the matter at the district court had been appointed by President Trump - so not exactly bleeding heart liberals. And their ruling striking down the Alabama map was not considered particularly controversial because, as many legal analysts noted, what the state did was as clear a violation of the law and of precedent as you are likely to find. Five justices on the highest court didn’t care.
As someone who has covered Alabama and the plight of civil rights there since the 1960s, I can tell you that the long history of repression and discrimination in a state whose nickname is the “Heart of Dixie” is a secret to no one. And while it is tempting to see these kinds of cases in terms of their sweeping import, we cannot forget the individuals on the ground in what was known as the Black Belt are being denied fair representation of their needs in Congress. This is exactly what the Voting Rights Act of 1965 was supposed to protect against.
For all of those who would argue that the protections of that landmark legislation are no longer needed, we can find ample evidence to the contrary in the rising divisive racial animus plaguing our country. Furthermore, the ongoing fight over access to the polls, and for representation in Congress, shows that the battle for the ballot box remains far from settled.
It is tempting to contextualize the Supreme Court’s ruling as nothing more than a political calculation. But it is hard to tell, because the Court’s majority didn’t even issue a formal decision. This was due once again to the justices’ use of the so-called “shadow docket.” Rather than the methods by which Supreme Court cases, especially ones that overturn longterm precedent, are supposed to be decided - briefings, oral arguments, deliberations - this was an emergency measure, a stay of a lower court’s ruling, that essentially eviscerated one of the seminal pieces of American legislation.
This wasn’t the first time this Court has used the shadow docket to essentially upend American jurisprudence. In her fiery dissent, Justice Elena Kagan let her fellow justices know what she thought of this practice:
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. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs (of the Voting Rights Act) have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.
As far as court writings go, this is as blistering and dismissive as you are likely to see.
I leave it to others more versed in the law to state the full implications and contextualizations of the Alabama ruling. Writing in the New York Times, the Pulitzer Prize-winning journalist Linda Greenhouse, who has covered the Court longer and better than almost anyone I can think of, stated the implications bluntly in a piece entitled “The Supreme Court Has Crossed the Rubicon.” Her take? “What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point.”
And here is where the full picture starts to come into view. This was always the hope of Mitch McConnell and the Federalist Society, which fought to fill the ranks of the U.S. Judiciary with hard-right true believers. They understood that even if they lost the other levers of federal power, Congress and the presidency, they could still shape the law of the land by owning the courts. In so doing, as we are seeing, their judges (I hesitate to call them conservative, because there is nothing conservative in their approach) could nullify the products of the democratic process in ways that promote their interests.
In light of the political valence which hangs heavily over our current age, it is possible to infer that what happened in the Alabama case was “Republican justices” wanting to make sure the Democrats didn’t get another seat in the House of Representatives. Whether that is fair or not to the justices in the majority we have no way of knowing. And that is exactly the problem. We don’t know, because there was no argumentation and no attempt to tether their decision to the law. So suspicion hangs over the entire enterprise.
There’s an old saying that goes along the lines of “Supreme Court justices read the newspapers too.” The idea being that public opinion matters in what the law will become. But if that is true of this Court it might be better stated as Supreme Court justices watch Fox News too. For what we are witnessing is not the law as much as it is transactional rhetoric without any pretense other than power.
In the interest of fairness, it has always been true that judges of all political persuasions have seen the law through their own biases. Liberal judges tend to rule one way and right-wing judges another. But not always in ways that are predictable. And in the past both liberal and conservative justices at least usually tried to cloak their decisions in the law.
This is fundamentally different. And evidence of that difference can be found in Chief Justice John Roberts. As many noted, including Greenhouse in her column above, the Court majority’s attack on precedent was so extreme that even Roberts, who has fought to weaken if not dismantle the Voting Rights Act for decades, felt it was a bridge too far and sided with the liberal justices.
I suspect he sees what we can all see, that an institution that derives its strength from its legitimacy is in danger of becoming a joke. Instead of legal minds wrestling with difficult issues, we see two-bit politicians dressing up in robes. That more than a half century of fundamental legal principle and landmark legislation can be tossed like it was a half-eaten turkey sandwich is not only a disgrace, it is dangerous.
In a world of nanosecond news cycles it might be difficult to gather people’s attention for a story like the direction of the Court. But many in the legal press, through articles and podcasts, are doing just that. They are ringing the alarm bells. Will people listen? Democratic voters in particular have not tended to rally around the Court as inspiration for marshaling their political power. But maybe that will change as the full impact of this current Court takes hold. (I think this topic would make for a fascinating documentary, if anyone is interested.)
Over the course of American history, the Court has found itself, more often that not, at odds with the popular direction of society. If the schisms grow between what the American majority wants and the Court majority delivers, the legitimacy of the institution will be further challenged. Just as we are seeing a consensus among Democrats for getting rid of the filibuster in the Senate because it blocks legislative action, so too might we see a consensus gather for reforming or even expanding the Court.
This is the game of chicken that the majority of justices is playing. Whether they are aware of it or not, is hard to predict. It seems the Chief Justice may understand. It is the job of the press to explain both the actions and the stakes. And it is the responsibility of American voters to decide whether this is how they want their nation’s business to be conducted.
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