The MAGA Supreme Court is Incompatible with Democracy

 

MAGA Supreme Court majority put a stake through the Voting Rights Act, at least for now, and unleashed a frenzy of chaotic redistricting in the South designed to erase 60 years of voting rights progress. The MAGA justices aggrandized power specifically delegated to Congress in the 14^th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”) and the 15^th Amendment (“The Congress shall have power to enforce this article by appropriate legislation”) to themselves, dismissing Congress’s clear intent to prohibit redistricting that has the effect of diluting minority voting power.

Carolyn Shapiro exposed the power grab: Congress’ clear command in the 1982 VRA amendments that it was protecting minority voters from redistricting that had the effect of reducing their voting power relative to other voters should mean that a state’s desire to advantage one party over another is irrelevant to Section 2 liability. … [I]it essentially incorporates the law of unconstitutional intentional discrimination into Section 2 – precisely what Congress was trying to avoid. But Callais also all but holds that Congress’ power under the 15th Amendment is limited to restricting discriminatory intent, not discriminatory effects.

The Voting Rights Act antagonists did not have the nerve to strike down the Voting Rights Act as unconstitutional. The VRA therefore remains nominally on the books but of virtually no value. (We will see how seriously the MAGA majority takes Callais’s assurance that intentional discrimination can still be prohibited; after all, that is precisely what the three-judge panel found in striking down Alabama’s map.) In sidelining Congress and claiming authority to dictate remedies needed to fulfill the promise of the 14^th and 15^th Amendments, the Callais majority sparked a massive movement in defense of voting rights, which was kicked off…

The MAGA justices’ reactionary judicial activism is rooted in an insidious sleight of hand. Callais is just their latest willful misreading of the post-Civil War amendments, which never sought to outlaw the race-conscious remedies needed to guarantee the ex-enslaved full citizenship. As Justice Ketanji Brown Jackson documented in her pristine originalist interpretation, the canard of a “colorblind society” does not derive from the intent, legislative history, or text; it is an invention that comes from deliberately rewriting the 14^th and 15^th Amendments and the VRA in service of white Republican power.

Chief Justice John G. Roberts Jr. takes umbrage at the notion the court has become “political.” Gosh, where would people get that idea? Steve Vladeck explained:

[T]he Court inserted itself into the midterm cycle—and set off this race to the bottom—knowingly (if not deliberately), both in what it ruled in Callais and in its willingness to issue the judgment immediately. That latter development was an unmissable signal that it was not averse to having this exact kind of chaos unfold on the ground—a point Justice Jackson made explicitly in her dissent from last Monday’s order. In her words, “as always, the Court has a choice.” …

This, to me, is the key point: whatever one thinks of the ruling in Callais, the Court chose this chaos.. .. Worse than that, all of these developments rather fatally undermine what I’d always understood to be the animating purpose of the so-called “Purcell principle”—which makes sense only as a strong norm against federal judicial intervention in the middle of election cycles. The Court’s own interventions are now wreaking havoc—and a majority of the justices either don’t think it’s their fault, or don’t care that it is.

Having discarded any pretense of political neutrality or consistency, MAGA justices should prepare to reap the whirlwind. They should anticipate that a backlash against Jim Crow will seek to end judicial intrusion into partisan politics and policy matters (e.g., commandeering voting rights remedies, superseding administrative rules with nebulous doctrines such as the Major Questions doctrine) and to re-assert the authority of the elected branches of government.

Democrats should be candid and uncompromising about their plans. An unhinged court, beginning with Shelby County, has exceeded the Plessy court in cementing white supremacy. Proposals to expand seats on the court are not simply designed to match the number of federal circuits; imposing term limits is not merely intended to prevent infirmed justices from lingering on the court. Democrats are prepared to do these things and potentially curtail the Supreme Court’s jurisdiction because the court has become a rogue threat to democracy. That message was on display in a demonstration of grassroots political power on Saturday: Democracy belongs to the people, not to right-wing justices putting their thumbs on the scale for Republicans.

Dramatic reform measures would not be necessary if the MAGA justices had not willfully misinterpreted post-Civil War amendments or played fast and loose with the Purcell doctrine. Had MAGA justices not trashed stare decisis to achieve partisan aims, manipulated the shadow docket to disguise executive power grabs, and brazenly dispensed with any pretense of partisan neutrality, serious judicial reform would not be essential.

Saturday’s Day of Action gave us a preview of the fierce political backlash against Jim Crow that can check judicial tyranny. Democracy defenders must turn out in overwhelming numbers but also apply a litmus test for every candidate for federal office: Will you rein in partisan judicial hacks who made hash of separation of powers and endangered multi-racial democracy?

Democrats will not have the opportunity to control Congress and the presidency until 2029. Nevertheless, they must start now to focus voters’ attention, as they did on Saturday, on MAGA justices’ quest to displace the voters’ elected representatives (i.e., overriding the VRA’s intent) in service of Jim Crow. MAGA justices delegitimized the Supreme Court; it’s up to the voters, through the elected branches, to end their foray into judicial imperialism that threatens multi-racial democracy.

Arrogant judicial partisans steeped in myths about the 14^th and 15^th Amendments have revealed their hostility to pluralistic democracy. If voters want their democracy back, they will have to elect a Congress and president willing to reassert popular sovereignty essential to our constitutional order. Judging from the democratic fervor on Saturday, voters appear up to the task.

---

Jennifer Rubin, The Contrarian is community-supported. Help fund bold journalism and critical lawsuits to stop Trump’s corruption by becoming a paid subscriber. Join the fight now