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Tag: majority of the justices

  • A Supreme Court Ruling That Could Tip the House

    A Supreme Court Ruling That Could Tip the House

    A decade’s worth of disappointment has conditioned Black Americans and Democrats to fear voting-rights rulings from the Supreme Court. In 2013, a 5–4 majority invalidated a core tenet of the Voting Rights Act of 1965. Subsequent decisions have chipped away at the rest of the law, and in 2019, a majority of the justices declared that federal courts have no power to bar partisan gerrymandering.

    So this morning, when two conservatives joined the high court’s three liberals in reaffirming a central part of the Voting Rights Act, Democrats reacted as much with shock as with relief. Chief Justice John Roberts, who wrote the 2013 decision in Shelby v. Holder that stripped the government’s power to vet state voting laws in advance, today released an opinion ruling that Alabama’s congressional map illegally diluted the votes of Black people by packing them into one majority-minority district rather than two.

    From the March 2021 issue: American democracy is only 55 years old—and hanging by a thread

    The decision in the case known as Allen v. Milligan preserves, for now, the landmark civil-rights law that many legal observers worried the Court would render all but moot. It also could have important ramifications for the 2024 elections and control of the House of Representatives, where Republicans hold just a five-seat majority.

    Many Democrats believe that the ruling will have a domino effect on other pending cases and ultimately force three southern states—not only Alabama but also Louisiana and Georgia—to each add a new majority-minority district before the congressional election, which would almost certainly flip seats currently held by Republicans. Texas might have to add as many as five majority-minority districts to its map. “It really clears the path for these cases to move forward hopefully in a quick resolution,” Abha Khanna, a Democratic lawyer who argued the Allen case before the Supreme Court on behalf of Black voters from Alabama, told me.

    These potential gains could more than offset the losses that Democrats are anticipating in North Carolina, where a new conservative majority on the state supreme court is expected to draw a congressional map more favorable to Republicans. After the ruling, the nonpartisan prognosticator Cook Political Report immediately shifted its projections for the 2024 elections by moving five House seats in the Democrats’ direction.

    Justice Brett Kavanaugh, a 2018 appointee of former President Donald Trump, joined Roberts and the Court’s three Democratic appointees, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in the 5–4 ruling. The decision was surprising not only because it ran counter to the Court’s recent jurisprudence on voting rights but also because last year, a majority of justices left in place the same maps that the Court today deemed illegal. That ruling, which came in an unsigned opinion on the Court’s so-called shadow docket, might have made the difference in the Democrats losing their House majority.

    “While we were certainly disappointed,” Khanna told me of that decision, “I think today’s victory shows that in this case, justice delayed was not justice denied.”

    From the October 2022 issue: John Roberts’s long game

    Advocates for voting rights were caught off guard. “Supreme Court Shocks Nation by Doing the Right Thing,” one left-leaning group, Take Back the Court, wrote in the subject line of an email that read like a headline from The Onion. George Cheung, the director of a voting-rights group called More Equitable Democracy, told me he was stunned by the ruling: “I and many others assumed that they would undermine if not completely gut what remained of the federal Voting Rights Act.”

    Instead, the Court’s majority rejected a bid by Alabama to reinterpret the redistricting provisions of Section 2 of the law as “race neutral,” a change that would have reversed the VRA’s original intent to protect disenfranchised Black voters.

    For Democrats, the decision offered a rare moment to celebrate a ruling from an institution in which many in the party have lost faith. The Court’s decisions in earlier voting-rights cases, on gun laws, the environment, campaign finance, and in particular the national right to abortion—which was reversed last year—have led progressives to accuse conservative justices of ruling according to their political preferences instead of the law

    The Court’s decision, Khanna told me, shouldn’t have been surprising—even if, to many people, it clearly was. “It’s certainly a remarkable victory for the Voting Rights Act and for minority voting rights,” she said, “but it’s rather unremarkable, because what it says is the law is as we have said it to be for the last nearly 40 years.”

    Russell Berman

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  • Justice Jackson’s Crucial Argument About Affirmative Action

    Justice Jackson’s Crucial Argument About Affirmative Action

    Yesterday, an hour and a half into the marathon hearings about whether colleges can use race as a factor in admissions decisions, Justice Ketanji Brown Jackson began to rub her temples as she looked down at her notes.

    “We’re entertaining a rule where some people can say what they want about who they are and have that valued in a system,” she said. “And I’m worried that that creates an inequity in the system with respect to being able to express our identity.” Black and Latino applicants would be limited if they can’t express their race in the selection process, she said. She almost laughed with exasperation. “Is that a crazy worry or is that something I should be thinking about and concerned about?”

    In previous arguments this term, Jackson was a forceful voice on issues of racial discrimination and the intent of the constitutional amendments designed to protect against it. For many in favor of race-conscious admissions, she has been a welcome presence on the Court, asking, in a way, the question at the center of the cases: Have less than 50 years of affirmative action put enough of a dent in the inequality fostered over more than two centuries of racial discrimination in higher education to merit eliminating the practice?

    From the September 2021 issue: This is the end of affirmative action

    For roughly five hours, the Supreme Court heard oral arguments in cases of Students for Fair Admissions, a coalition of unnamed Asian American students brought together by the conservative legal strategist Edward Blum, against the University of North Carolina and Harvard. If the cases are successful and the justices side with SFFA—which a majority of the justices seemed quite open to in their questioning yesterday—the decision would overturn the precedent established in Regents of the University of California v. Bakke in 1978, which has been upheld for more than 40 years. Because of her previous tenure on Harvard’s Board of Overseers, Jackson recused herself from the Harvard case and sat for only the UNC case. But she did not waste the time she had.

    Although relatively few colleges are selective enough to have reason to consider race in admitting students, there is significant evidence about what happens at those schools when such programs go away. Michigan and California, for example, saw precipitous declines in Black enrollment at their flagship campuses after those states banned the practice. (By SFFA’s own estimates, described during oral argument, Black enrollment at Harvard would fall from 14 to 10 percent without affirmative action.) In some ways, that’s the backdrop to Jackson’s questions. She was driving toward a fundamental statement about what the programs are for: Race-conscious admissions are designed to help students get into college, not to exclude students as a result of their existence.

    Jackson’s point is well worn. In 1978, during the oral arguments in the Bakke case, Justice Thurgood Marshall identified it. In an exchange where he prodded Reynold Colvin, who argued for the plaintiff, Allan Bakke, Marshall pointed out, “You’re arguing about keeping somebody out and the other side is arguing about getting somebody in.” Colvin agreed. “So, it depends on which way you look at it, doesn’t it?”

    Once again, Colvin agreed. “It depends on which way you look at the problem,” Colvin said.

    Marshall’s voice changed. “It does?” he said, with a rise in inflection.

    “The problem—” Colvin began to say before Marshall cut him off.

    “It does?” Marshall said, frustrating Colvin. “You’re talking about your client’s rights; don’t these underprivileged people have rights too?”

    Yesterday, Jackson was less direct, but no less potent, in an exchange with Patrick Strawbridge, the lawyer for SFFA. She offered a hypothetical to emphasize her point. There are two applicants who would like their family backgrounds recognized. One writes that their family has been in North Carolina since before the Civil War, and that if they were admitted to the university, they would be a fifth-generation student there. The other student is also a North Carolinian whose family has been in the state since before the Civil War—but their ancestors were enslaved and, because of years of systemic discrimination, were not allowed to attend the university. But now that they have the opportunity, they would like to attend. “As I understand your no-race-conscious-admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.” Both applicants were qualified, Jackson offered, but the first applicant’s qualifications could be recognized in the process, whereas “the second one wouldn’t be able to [get credit for those qualifications] because his story is in many ways bound up with his race and the race of his ancestors.”

    Lee C. Bollinger and Geoffrey R. Stone: The end of affirmative action would be a disaster

    Strawbridge thought for a moment, then offered that UNC does not have to give a legacy benefit to the first applicant if it doesn’t want to. This is true, but it was not Jackson’s point: “No, but you said it was okay if they gave a legacy benefit.” Race, she said, would be the only thing that couldn’t be considered under that program. And that would disadvantage the Black student who, in a similar set of circumstances, wants “the fact that he has been in North Carolina for generations through his family” considered.

    In a day filled with questions about the meaning of “true diversity” or the educational benefits of diversity, Jackson’s questions cut through the muck. Some students had historically been denied access to some of the nation’s most well-resourced institutions of higher education—feeder campuses for prominent roles throughout society–because of their race. If SFFA wins, that fact will be one of the only things a university cannot consider in its admissions process, as though that history never happened—as though the system is fair enough already.

    Adam Harris

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