“Under a traditionally liberal view of the Supreme Court, its decision on Monday to uphold, at least for this year, a congressional map in Alabama that intentionally weakens the voting strength of Black people in the state is a betrayal of its duty to protect the rights of minorities, racial and otherwise.
Under a more historical view, it is the court doing what the court does.
First, a little background on Monday’s decision. Section 2 of the Voting Rights Act bars any voting law or procedure that “results in a denial or abridgment of the right of any citizen to vote on account of race,” as the Department of Justice puts it. This includes situations where lawmakers have “cracked” minority communities into multiple districts to dilute the strength of their voters. To remedy this, courts can require states to create “majority-minority” districts in which these voters can then elect the candidates of their choice. This is especially important in places where voting is so polarized by race that minority communities are rarely, if ever, able to shape the outcome of an election.
Last year, Alabama’s Republican-controlled Legislature drew and passed a congressional map that packed a large number of Black voters into a single district encompassing the cities of Birmingham and Montgomery, while spreading the remaining voters throughout six majority white districts. By “packing” one group of Black voters and dispersing the rest, Alabama Republicans successfully reduced the voting strength of the entire Black community in the state, which accounts for 27 percent of its population.
Black Alabamians filed suit. In January, after seeing evidence and hearing arguments from both sides, a three-judge District Court panel (with two Trump appointees) agreed that the state had violated the Voting Rights Act. It ordered the Legislature to draw a new map containing a second majority-minority district. Republicans appealed the decision to the Supreme Court, where five members voted to stay the order, reinstating the original map.
This, wrote Justice Brett Kavanaugh, who voted with the majority, was not done “on the merits.” It was merely an attempt to keep the courts from disrupting the upcoming election which, he said, was “close at hand.” Except Alabama’s primary is not until May and its general election is not until November. There was, and there still is, plenty of time to draw new maps.
In the view of Chief Justice John Roberts, who voted with the minority despite his hostility to the Voting Rights Act, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” By granting a stay, the conservative majority has effectively changed the law, freeing Alabama (and other states) to devise the kinds of racial gerrymanders that the Voting Rights Act was written in part to prohibit. That is one reason my colleague Linda Greenhouse called the decision a “raw power play by a runaway majority that seems to recognize no stopping point.”
But again, historically speaking, we should not see this as an exception to the rule, but as the rule.
On July 9, 1868, the United States ratified the 14th Amendment to the Constitution. As the historian Eric Foner explains in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,” the amendment was written, among other things, to “establish general principles about the rights of the freed people and of all Americans.” Within a decade, however, the Court had radically narrowed the scope of that amendment, construing it as “a vehicle for protecting corporate rights rather than those of the former slaves.”
On Feb. 3, 1870, the United States ratified the 15th Amendment to the Constitution. It prohibited the national government and states from denying the right to vote on account of “race, color, or previous condition of servitude” and gave Congress the power to enforce that prohibition with “appropriate legislation.” It was written, specifically, to extend suffrage to Black men. But in 1876, Foner notes, the Supreme Court “overturned the convictions of Kentucky officials who had conspired to prevent blacks from voting in a local election.”
Writing for an 8-1 majority of the court, Chief Justice Morrison Waite conceded that the amendment grants “an exemption from discrimination in the exercise of the elective franchise on account of race,” but denied that it conferred the “right of suffrage” on anyone. His opinion opened the door to the kinds of restrictions — poll taxes, literacy tests and grandfather clauses — that Southern states would eventually use to disenfranchise their Black populations.
In the 1870s, Congress passed laws to punish acts of violence meant to deprive Americans of their constitutional rights, to outlaw discrimination in public accommodations and to prohibit exclusion from jury service. In the 1880s, the Supreme Court either invalidated those laws or rendered them a dead letter. In his 1883 opinion for the majority in the Civil Rights Cases, which held that neither the 13th nor the 14th Amendments gave Congress the power to outlaw racial discrimination by private individuals, Justice Joseph P. Bradley declared, “When a man has emerged from slavery” there must be “some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”
It is Congress, and not the Supreme Court, that has, over time, done more to defend the civil and voting rights of all Americans. To do the same, the court has had to reverse its own work. As Nikolas Bowie, an assistant professor of law at Harvard, has written, “As a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”
Barring the unexpected, and assuming the presidency continues to swing evenly between the two parties, conservatives can expect to hold the Supreme Court for at least a generation. But this won’t be a new frontier as much as a return to form.
For most of its history, the Supreme Court — the 16 years of the Warren court notwithstanding — has been a friend to hierarchy and reaction. Thus, for Americans who want a more equal society, the Supreme Court has been, is and will continue to be an adversary, not an ally. Understanding that fact is the first step toward doing something about it.“