Texas Republicans (after getting their mid-decade gerrymander) will “owe the Supreme Court a debt of gratitude,” notes Adam Liptak.
In the two decades Chief Justice John G. Roberts Jr. has led the Supreme Court, the justices have reshaped American elections not just by letting state lawmakers like those in Texas draw voting maps warped by politics, but also by gutting the Voting Rights Act of 1965 and amplifying the role of money in politics.
And, as Liptak explains, the court has signaled that there’s more to come — through more gutting of the VRA and further undermining the Fourteenth Amendment, which struck with a vengeance in Shelby County v. Holder in 2013. This and other decisions represent a power grab by the Republican majority on the high court to deny Article I authority of the most democratic branch of the federal government to enact legislation to protect voting rights. John Roberts has made a career out of the Republican Party’s opposition to the VRA — beginning with a stint as a 20-something attorney working for the Reagan Justice Department. A key battle he lost then, he reversed three decades later with the Shelby decision.
In 2019 in Rucho v. Common Cause the Republican majority struck down lower court rulings that restricted gerrymandered redistricting schemes and, further, forbade federal courts from consideration of constitutional violations in such cases. The chief justice, after a bit of handwringing about the unfairness of the schemes and dithering about why the courts couldn’t possibly adjudicate notions of fairness, sided with the schemers. Justice Elena Kagen was unmoved by the reasoning:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
. . .
Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.
The Republican majority on the Roberts Court, after trampling on voting rights, supercharged extreme gerrymandering — landing us in an undemocratic partisan battle, which will harm voters in every state that enters the fray.
The Republican justices — acting with more fidelity to the agenda of the Republican Party than to the plain text of the Constitution and the separation of powers that grants Congress the authority to legislate — are deciding cases based on political preferences or feelings or, as Leah Litman puts it, vibes. From Chapter 3 of her book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes:
Vibes don’t have to, and shouldn’t, cannibalize the law entirely. What has been happening over the last decade and change differs, at least in degree, from what was happening before. Voting rights decisions have become more nakedly partisan as more recent Republican appointees have more reliably reflected Republicans’ pro-minority-rule and anti-voting-rights agenda. There are no more John Paul Stevenses or David Souters who aren’t into nullifying voting rights protections because they think voting rights are too woke. They Rehnquist Court had its lawless moments, such as the remedy in Bush v. Gore, which ordered a state to cease and desist its efforts to accurately count ballots. Over time, more and more decisions have looked like that. Between misleading ellipses, recycled political talking points, letting feelings matter more than whether people’s votes are counted, and inventing prohibitions on voter discrimination into protections for voter discrimination (just to name a few), the Court has descended into no law, and just vibes.
Welcome to MAGA America courtesy of the Roberts Court. It began paving the way for the wannabe authoritarian in the White House even before Donald Trump rode down the golden escalator. And the Republican justices are still at it.