SCOTUS's farcical endorsement of gerrymandering
The right-wing majority turned back the clock on efforts to address racial inequality.
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Perhaps because he’s been busy lying about his wife’s visible support for an insurrection, Justice Samuel Alito can’t seem to make time to do his job properly. That would certainly explain his majority opinion in Alexander v. South Carolina State Conference of the NAACP, where he and the rest of the Court’s conservatives decided dealing with racial gerrymandering is just too hard.
Alexander is the latest case demonstrating that the GOP appointees have no interest in using the Constitution to rectify the malignant history of racism in the United States, despite the fact that the Reconstruction Amendments exist for precisely that reason. Contrast this with the tender solicitude with which the right-wing jurists deploy the First Amendment to protect conservative Christians from their imaginary fears, and it becomes clear whose lives they value.
Feelings don’t care about your facts
In Alexander, the Court overturned a lower federal district court ruling that South Carolina’s congressional map was an unconstitutional racial gerrymander. A three-judge panel conducted a 9-day trial, after which it found that the Republican-controlled state legislature had set a racial target of 17 percent in Congressional District 1. To get down to only 17 percent Black voters in that district, the legislature’s mapmaker moved over 30,000 Black voters in one county out of Congressional District 1 and into Congressional District 6, a move that the lower court said “created a stark racial gerrymander.”
Here’s where gerrymandering law gets stupid and leaves the door open for bad-faith actors like Alito. Gerrymandering based on race is largely unconstitutional. But gerrymandering based on the partisan makeup of voters is not. So, South Carolina lawmakers are free to draw districts to exclude Democrats, but they’re not free to draw districts to exclude Black people.
The problem with making a constitutional distinction between racial and partisan gerrymandering is that there is no meaningful distinction between the two because Black voters overwhelmingly vote for Democrats. Legislators get around this by insisting they aren’t looking at racial demographics when drawing maps — only partisan voter demographics.
Indeed, that’s what Will Roberts, the cartographer who drew the South Carolina Senate’s map, told the lower court. He said he didn’t consider racial data while he drew maps but admitted he looked at partisan data after he drew each version. But at trial, Roberts knew the racial makeup of the state so well he was able to provide the racial breakdown off the top of his head “down to the individual precinct level.”
In contrast to this, which required the lower court to believe Roberts emptied his mind of all racial demographic knowledge each time he drew a proposed map, the NAACP plaintiffs in the case provided actual experts. One statistics expert, for example, ran 10,000 race-blind simulations of the proposed boundary lines, and only 0.2 percent of those simulations resulted in fewer Black voters than the plan adopted by South Carolina.
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The panel unanimously determined this map was unconstitutional, but the Supreme Court agreed to hear South Carolina’s appeal and ultimately agreed with the state’s assertion that Black voters were moved only for partisan reasons. For the majority to side with South Carolina, it needed to ignore many of the lower court's findings of fact. That’s a problem. Appellate courts like the Supreme Court are not finders of fact. That’s the job of a jury — or lower court judges acting as fact-finders, as was the case here.
Since appellate courts don’t hear from witnesses but only review the lower court record, they’re generally required to give deference to a lower court’s findings of fact. Here, the majority did no such thing. Rather, as Justice Elena Kagan noted in her dissent, “the majority picks and chooses evidence to its liking; ignores or minimizes less convenient proof [and] … declares that it knows better than the District Court what happened.”
Ignoring or mischaracterizing facts has become a hallmark of the conservatives on the Court. In 2022’s Kennedy v. Bremerton, the Court decided that public Christian prayers led by the coach at public high school football games did not violate the separation of church and state. Justice Neil Gorsuch’s majority opinion described Coach Joseph Kennedy’s actions as “a quiet prayer of thanks … while his students were otherwise occupied.” Alito’s concurrence similarly described the prayers as occurring “while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities.”
The record actually showed that Kennedy routinely gave speeches with overtly religious references while the team kneeled around him at the 50-yard line. After the school told him to stop, Kennedy did a media blitz declaring he’d pray on the 50-yard line again. But a case where a high school coach ostentatiously prayed with his team in the most visible spot imaginable wouldn’t have been a good vehicle to smuggle religious observance into public schools, so those facts had to go.
Similarly, in last year’s 303 Creative v. Elenis, the Court ruled that a conservative Christian designer, Lorie Smith, could not be required to make a wedding website for a same-sex couple despite a Colorado law prohibiting such discrimination. Smith said in court filings she had been contacted by a gay man, Stewart, about making a website for his upcoming same-sex wedding, which spurred her lawsuit. But as the New Republic reported just before the Supreme Court decision came out, Stewart is straight, married to a woman, and didn’t ask Smith for a website.
To be fair, given the timing, the Court wasn’t necessarily aware of the fiction in 303 Creative. But 303 Creative came by way of the Alliance Defending Freedom, the conservative legal group that has helmed a series of cases rolling back reproductive health and LGBTQ rights, and the right-wing justices can’t get enough of those.
Working backward from the wants of fellow right-wingers
Both Kennedy and 303 Creative expanded the reach of the First Amendment to maximize protection for one group only — conservative Christians.
The majority’s holding in Kennedy rested on the Free Exercise Clause, which says that Congress shall make no law “prohibiting the free exercise” of religion. As Justice Sonia Sotomayor wrote in her dissent, this over-focus on protection for individual religious exercise came at the expense of the Establishment Clause, which prohibits the government from “respecting an establishment of religion.” Since the majority pretended Kennedy was just taking a quick moment to pray privately, they didn’t have to grapple with the school district’s concern that having a school employee gather his team at the 50-yard line while he delivered a Christian speech looked a lot like the school officially recognizing Kennedy’s brand of Christianity.
303 Creative’s holding, meanwhile, turned on the Free Speech Clause, which bars the government from abridging freedom of speech. The majority ruled that if Smith had to provide wedding website services for same-sex couples, she would be forced to speak in a way that violated her conscience. This view of the Free Speech Clause eviscerates public accommodations laws, which require businesses that hold themselves open to the public to serve everyone.
When the Civil Rights Act was passed in 1964, it outlawed segregation in businesses and public places. A motel owner in Atlanta sued, arguing the law deprived him of his right to operate his business as he wished and only serve white customers. A unanimous Supreme Court ruled against him, saying that “racial discrimination in public accommodations interferes with personal liberty.” States have their own public accommodation laws, and many have laws that protect LGBTQ people. Now, businesses can refuse to serve LGBTQ people if doing so violates their religious or moral beliefs. It’s a breathtaking step backward, and, as Justice Sotomayor wrote in her dissent, there is no way to limit the decision only to allow discrimination against LGBTQ people. Sotomayor noted that a website designer could now refuse to create a wedding website for interracial couples if they oppose interracial marriage, for example.
There was a time when it would have seemed like Sotomayor was willfully overstating the possible harms, largely because protections against racial discrimination were seen as more well-settled then protections for LGBTQ people. In the last dozen years, though, right-wingers on the Court gutted the Voting Rights Act in Shelby v. Holder and struck down affirmative action in Students for Fair Admissions v. Harvard.
This brings us back to the Alexander case, where the majority gave legislators a magic incantation to defeat future contentions of racial gerrymandering. All legislators must do is invoke the possibility that their maps were drawn with partisan intent instead and, “in light of the presumption of legislative good faith, that possibility is dispositive.” This presumption of legislative good faith here is not a legal doctrine, but a thing the majority made up from whole cloth. It gives deference to the powerful — elected officials — at the expense of Black voters, a group that has historically lacked power.
As bad as Alito’s majority opinion in Alexander is, though, Thomas’s concurrence is worse, deciding as he did to grumble about Brown v. Board of Education. He doesn’t go as far as to say that the Brown Court was wrong to find that segregation in public education is unconstitutional. Instead, he groused that, in fashioning relief, the Court “took a boundless view of equitable remedies.”
This is not a new view for Thomas. In 1995, he complained about federal courts ordering remedies such as busing to address segregation, arguing that such remedies were extravagant and led to judicial overreach. Per Thomas’s Alexander concurrence, there is no authority for redistricting remedies like requiring a state to draw a replacement map because the High Court of Chancery in England did not provide for such a remedy back in 1789 when the Constitution was adopted. No, really.
In this worldview, the Fourteenth Amendment, which mandates that all people receive equal protection under the law, and the Fifteenth Amendment, which gave Black men the right to vote, don’t have any actual effect or enforcement mechanism. As Mark Joseph Stern wrote at Slate, under Thomas’s framework, “as long as a Black citizen can cast their ballot, the Constitution is satisfied. It does not matter if their vote will be meaningless in practice because of gerrymandering and malapportionment.”
So there you have it. On the one hand, an infinitely elastic view of the First Amendment, able to be deployed at any time to protect conservatives from having to participate in a pluralistic society. On the other, an increasingly cramped view of the Reconstruction Amendments, able to be narrowed to nearly nothing to protect conservatives from having to participate in a pluralistic society. There’s no mystery who this Court is for.
That’s it for today
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It's important to view Alexander as a real and actual sequel to Dobbs and to see that the conduct of the majorities in both decisions is fundamentally (and obviously) anti-constitutional, and it is about something even more fundamental and essential than skin color. Look at the Dobbs opinion and see how many times it uses the words "moral," "belief," "believe" or "view" and look at the words around those words. That is what Alexander was intended (by the SCOTUS majority) to protect and entrench.
The SCOTUS majority (and the state legislators they empowered) in Alexander and in Dobbs are rather flagrantly doing nothing more and nothing less than imposing their own religious and political views on people who do not share their religious or political views. That is powerfully opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding freedom of religion and freedom to think and live as we wish) (essentially, as the Declaration of Independence says, our right to life, liberty and the pursuit of happiness).
If the Dobbs and Alexander majorities had focused on what was in our Constitution (what it actually says and clearly means), I'd have no problem with those decisions. I was a paratrooper. I served this nation for a long time in dangerous and unpleasant places. My brothers and I sacrificed a lot of our liberty and happiness for this nation. Many of us sacrificed our health. Some sacrificed their lives. I understand that nations (as societies) get to make decisions that disproportionately affect some citizens' lives. I accept that concept, but only to the extent that it actually did what my oath (and the oath of every federal judge) said, i.e., "support and defend" our "Constitution." I'm also a lawyer and I've studied a lot and thought a lot about our Constitution and our early history. I think about our Constitution as a lawyer, a soldier and a citizen. I know that, as a matter of law, judges are no less bound by their oaths than soldiers. Our oaths are our promises to the people we serve, our promise that in everything we do we always will "support and defend" our "Constitution."
It is obvious that supporting and defending our Constitution is not at all what SCOTUS did in Dobbs or in Alexander (and that's not what state legislators are doing). They supported and defended parts of our history that were consistent with their own religious and political views. In Dobbs, in particular, they used a lot of irrelevant history to deceive us about our Constitution, and they ignored the relevant history.
The relevant text and meaning of our Constitution and our relevant history really are quite straightforward and simple. They also were remarkably brutal and bloody. Throughout our early history, a huge number of Americans accepted that some people can treat other actual people (men, women, children) as well as fetuses as property (consistent with our Constitution).
The 14th Amendment clearly and emphatically says all "persons" who were "born" in the U.S. (or born somewhere but "naturalized" in the U.S.) are equal under the law and equally protected by the law. So now, some people cannot treat other people as their property. Even so, the Constitution clearly does not say (or mean) that state legislators (or SCOTUS) can rob people (who actually were "born" or "naturalized" in the U.S.) of their protection under the Constitution to protect any fetus (which clearly is not a "person" who was "born" anywhere).
With the 19th Amendment, our Constitution finally expressly and specifically acknowledged that women were fully first-class citizens (fully "persons" and "citizens" (fully part of "the people") as those terms were used in the Constitution). The fact that the 19th Amendment even was required is a massive red flag about the history and people on which Justice Alito and his gang love to rely. The letter and spirit of the 14th Amendment clearly commanded protection of all "citizens" regarding their "privileges or immunities" and "due process of law" and "equal protection of the laws" for every "person." Yet, the people in power (state legislators and judges) pretended "person" and "citizen" did not actually mean women. The originalists' own logic condemns their own deceitful conduct in relying on a history of obviously and irrefutably unconstitutional conduct.
The view that actual "persons" and "citizens" can make their own decisions about their own lives and bodies (and treat their own bodies and everything in them, including fetuses, as their property) is perfectly consistent with the text and meaning of the original Constitution, the Bill of Rights, and the 13th, 14th and 19th Amendments and with a lot of our history before and even after the 14th Amendment. If anyone truly believes that the opposite view is consistent with those parts of our Constitution (and our history until well after the 14th Amendment), please show me how.
"This presumption of legislative good faith here is not a legal doctrine, but a thing the majority made up from whole cloth."
What would this SCOTUS majority know about acting in "good faith"?