Yesterday, Attorney General Garland announced that the Justice Department is suing Texas over its updated, excessively gerrymandered map on the grounds that it disenfranchises Black and Brown voters in a minority-White state, which is what keeps Texas' political representation so Red. Associate Attorney General Vanita Gupta added, “Texas's 2021 redistricting plans were enacted ... with an overall disregard for the massive minority population growth in Texas over the last decade."
DOJ's suit: nice gesture, doomed outcome. For this radical — not conservative — Supreme Court has hurled the legal circumstances of U.S. voting rights back into the age of Jim Crow. In all but name, that's where we stand.
In 2019, Chief Justice Roberts obliviously wrote that the Court, in cases of gerrymandering, has "no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority."
As a mere layman, I can think of at least one legal standard the Supreme Court could have followed: the 1964 "one person, one vote" decision in Reynolds v. Sims. Diluting the votes of minorities by scattering them throughout mostly White districts defeats Reynold's intent in the most cynical and racially discriminating way. But for nearly 10 years now, the Court has repeatedly gutted the voting rights of "the wrong persons," each with their one vote.
The Court's reactionary meatheadedness began in 2013, in Shelby v. Holder. There, the majority ruled that preclearance by the Department of Justice of states' discriminatory shenanigans was unconstitutional, since states' formulas securing racial discrimination were so yesterday. The District Court for D.C. and the U.S. Court of Appeals for D.C. had ruled that any notions of outdated formulas were perfect hogwash. Not so to Justice Roberts & Friends, who struck down preclearance.
Justice Ginsburg, joined by Breyer, Sotomayor and Kagan, wrote the minority's dissent: "After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment.'"
Even schoolchildren versed in critical race theory — which, as we know, is pounded daily into their little heads by eminent legal scholars teaching second grade — would have agreed with the Court's minority.
Then, in 2019, in Rucho v. Common Cause, the Court refused to tackle partisan-gerrymandered maps. What's the most prevalent basis for gerrymandering by partisans? You got it: race, which tends to align with partisanship. Nevertheless, while maintaining the fiction that racial gerrymandering was abhorrent to the Court, Justice Roberts, writing for the majority, kindly observed that "excessive partisanship in districting leads to results that reasonably seem unjust" (italics mine). Then came the but: "But the fact that such gerrymandering is 'incompatible with democratic principles' ... does not mean that the solution lies with the federal judiciary." Besides, we have since learned from Justice Barrett that the Court itself recoils from partisan hackery.
In Justice Kagan's dissent, joined by Justices Ginsburg, Breyer and Sotomayor, she concluded: "Gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense.... Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections."
Then, two years later, came Brnovich v. Democratic National Committee. The U.S. Court of Appeals for the 9th Circuit had found that Arizona had enacted racially discriminatory laws — you know, the very kind of laws the S.C. had seen as abhorrent? Quoting the Brennan Center for Justice: "[The Supreme Court] ruled that two Arizona voting laws did not burden voters of color enough to constitute a violation of VRA" (my emphasis). Again, the minority's dissent ambled helplessly on.
Except for what I proposed in this post's title, I'm not sure what else this Supreme Court could do to devastate the voting rights of, let's face it, the wrong people.
So this one's for you, A.G. Garland: Good luck!