Discover more from Public Notice
In shocking twist, Roberts and Kavanaugh block the march toward one-party rule
Nobody saw this coming.
An ICYMI from Aaron: On Saturday, I ran a special edition of Public Notice featuring an explainer from Lisa Needham on the Trump indictment. Lisa did a great job using her legal expertise to unpack the charges Trump faces. Her piece has received rave reviews, so if you missed it over the weekend I highly recommend you check it out.
By Noah Berlatsky
The Supreme Court last week refused an opportunity in Allen vs. Milligan to completely gut the Voting Rights Act. In doing so, the hard right-wing court effectively prevented the Republican Party from terminating multi-racial democracy. The GOP plan to impose one-party rule through judicial fiat lies in tatters, and what has seemed like an inevitable march towards authoritarianism suddenly looks a lot less inevitable.
The ruling has rightly been celebrated. But it's also, in many respects, been underappreciated. Cable news has been obsessed with the second indictment of former president Donald Trump. And partisans on both sides are, in general, unsure what to make of John Roberts and Brett Kavanaugh, of all people, delivering a stinging, and in some ways decisive, blow against Christofascist hegemony.
This is a huge victory, though, and I think it's important to explain why US democracy, unexpectedly, and rather abruptly, looks like it might survive.
SCOTUS concludes that wholesale disenfranchisement of Black people is bad
The Milligan lawsuit involved a particularly egregious gerrymander in Alabama. Lawmakers drew a map which squished almost all Black voters into a single majority-minority congressional district, allowing white Republicans to control the state's other six seats. Black people make up almost 27 percent of Alabama’s population, but the map restricted them to only 14 percent of the state's representation, since the redrawn map all but guaranteed that a Black candidate had a shot of winning just one district out of seven.
The Alabama map was egregious, racist, and clearly unconstitutional. Nonetheless, it seemed almost certain that the current Supreme Court would refuse to strike it down.
Public Notice is supported by readers and funded by paid subscribers. To help make this work sustainable, please consider becoming one.
John Roberts has spent his entire career waging a tireless war against the Voting Rights Act. In Shelby County v. Holder in 2013, even before Trump increased the conservative majority to 6-3, the court decided that states with a history of racist election shenanigans no longer had to get federal approval for new election laws. States like Georgia, Texas, and Louisiana rushed to pass stricter voter ID requirements, to close polling places, and to purge voters from state rolls. All of these measures have disproportionately disenfranchised Black voters, which was the point all along.
More, in February 2022, the Supreme Court allowed Alabama to use its racist gerrymander in last year’s midterm election, overturning a lower court ruling that held the map had to be thrown out. If the court was willing to protect the GOP's racist map-making in 2022, it seemed likely they'd protect them forever.
But somehow they didn't. Instead, Roberts, writing for the majority, rebuked Alabama’s conservative legislature, arguing that "the heart of these cases is not about the law as it exists. It is about Alabama's attempt to remake [Supreme Court voting rights] jurisprudence anew."
In other words, conservatives brought the case to give the conservative majority on the Supreme Court a chance to throw out precedent and destroy the Voting Rights Act completely, making America safe for racist gerrymanders and the wholesale, unchecked destruction of Black voting power.
Given the court's willingness to abandon precedent on abortion rights, to name just one example, this seemed like a reasonable tactic. But Roberts disappointed them.
Why did Roberts disappoint them? It's hard to say. It's possible that the massive backlash to the court's abortion decision, and the recent corruption scandals involving Clarence Thomas, have made some conservative justices more cautious. Perhaps the Alabama gerrymander was just so egregious that it shocked even Roberts and Kavanaugh. Or maybe, as Nation justice correspondent Elie Mystal speculates, Roberts just really hates computers and disliked the way the Alabama legislature used software to create their maps.
Republicans still have to win votes
We don't exactly know why Roberts and Kavanaugh reversed course on voting rights. But we do know that their decision undermines what appears to have been the Republican long term strategy towards seizing minoritarian power.
It's no secret that Republicans have been struggling electorally for some time. They've won the popular vote for president just once in the last 31 years. They face major demographic headwinds.
The party relies mainly on white voters in elections, but the nation is diversifying quickly. In the last census 4 of 10 Americans were non-white, and the white population declined in absolute numbers over the previous decade for the first time in history. In 2022, the erosion of abortion rights galvanized Democratic voters, women, and younger voters, leading to a terrible Republican performance, despite Democratic President Joe Biden's weak approval ratings.
Republicans could address this by moving away from white identity politics and trying to bring in other voters. Instead, though, they've doubled down on extremism, and tried to make up the difference through an assault on voting rights. If only Republican voters can vote, it doesn't matter how few of those voters there are, or how unpopular their policies may be.
RELATED FROM PN: The red wave that wasn't
Donald Trump's election lies were the most naked expression of this philosophy. He simply claimed that votes in mostly Black cities like Philadelphia were illegitimate. His followers attempted to disenfranchise Black people and Democrats through a violent coup that would have nullified Joe Biden's 2020 victory.
January 6 was unsuccessful. But longer term, more patient and perspicacious Republicans hoped that a nonviolent, judicial-engineered coup could achieve the same ends. By creating aggressive gerrymanders and putting in place tried and true voting restrictions — like a poll tax in Florida — Republicans could choose their own electorate, and rely on the 6-3 Supreme Court majority to back them up.
The result would effectively be a judiciary-led return to Jim Crow. White conservatives would impose tyrannical rule under a sham "democracy," and everyone else would have no recourse. As the number of white voters dwindled, conservatives could simply ramp up voting restrictions — which would ensure, among other things, their continued domination of the courts. It's a recipe for permanent one-party rule in red states. And not just in red states.
Milligan puts an end to that authoritarian Republican dream. The extremist Roberts court has said that there is a limit in how far even they're willing to go in shredding democracy for the GOP.
In the short term, that means maps in Georgia, Louisiana, and South Carolina will probably have to be redrawn. Other Republican legislatures can't count on their racist gerrymanders being upheld. None of this guarantees that Democrats can flip the House in 2024. But it gives them a fighting chance.
In the longer term, it means that Republicans are going to have to actually compete for votes, rather than just imposing their will by judicial fiat.
Not utopia. But not bad.
Milligan doesn't solve all our problems. Republicans continue to try to use state power to erode liberty. They're targeting abortion rights. They've passed laws to restrict free speech for Black and LGBT people. They're trying to eliminate trans people in public spaces. Leading Republican candidates like Trump and Ron DeSantis have made their contempt for democratic elections clear. Many US institutions, like the Senate and the electoral college, give Republicans disproportionate power, and ensure that they can remain competitive even with very unpopular policies.
And of course the far right Supreme Court has itself eroded voting rights, and may do so again. As Melissa Murray and Steve Vladek write at the Washington Post, the Milligan decision "does not strengthen" the Voting Rights Act. It "merely preserves the status quo."
The status quo in the US is not great, to put it mildly. But two weeks ago, it seemed likely that John Roberts and his colleagues were going to put a stake through the heart of ballot access. They didn't. Which means, just maybe, US democracy has a future after all.
“If even half of it is true, then he’s toast,” and more fallout from Trump’s indictment
By Aaron Rupar
Whew, I sure posted a lot this weekend despite not having internet at home now for four days and counting (fingers crossed CenturyLink can finally manage to get a repairperson out here today or tomorrow). Apologies to my wife and kids for having to spend so much time at the Mexican restaurant down the street, but I needed the wifi, and it doesn’t hurt that they have good margaritas — they may even have added a little spice to my tweets.
In any event, as I mentioned at the top, if you missed Saturday’s special edition of the newsletter explaining the Trump indictment, it’s worth your time to read it. And then after editing and publishing that, I live-tweeted both of the lengthy speeches Trump delivered Saturday to GOP conventions in Georgia and North Carolina, respectively. Lowlights included Trump’s nonsensical defense of his mishandling of classified materials; describing his fight against prosecutors and Democrats as “the final battle;” repeatedly bringing up Jack Smith’s wife in mob boss fashion; reviving his “vaccines cause autism” BS; and, finally, a moment of radical honestly where he riffed about Republicans being way more into bigotry these days then they are tax cuts or anything else. If you’d like to catch up on those speeches and get a sense of where the beleaguered MAGA zeitgeist is at these days, you can check out my full threads here.
Then, I tuned into the news shows Sunday morning and was surprised to see Jim Jordan kick things off with a rare CNN appearance. And if the self-defense Trump offered on Saturday was nonsense, Jordan’s was even worse. He flatly insisted that Trump declassified all the documents in his possession — even as host Dana Bash pointed out to him that Trump was recorded admitting he hadn’t.
“What you’re saying just doesn’t make sense!” she told him. Watch an extended clip of the interview below.
On the other side of the spectrum was former Trump AG Bill Barr, of all people. Barr went on Fox News Sunday and calmly explained why the indictment is so bad for Trump, saying that “if even half of it is true, then he’s toast.” This obviously isn’t the first time Barr has criticized his former boss in connection with the documents investigation, but it’s still jarring to hear such commentary on a show that’s usually home to all sort of Trump sycophantry. Here’s an extended clip:
I’ll leave it there for now, in part because as I type this Sunday night the Mexican restaurant is closed and I’m relying on my phone for internet access. But I promise I’ll drink as many margaritas as it takes to cover Trump’s court appearance Tuesday in Miami and its fallout.
That’s all for today
I’ll be back with more Wednesday. If you enjoy this post and aren’t already a paid subscriber, please consider supporting our work by becoming one. Thanks!