SCOTUS AS AN ARCHITECT OF DEMOCRATIC DECLINE

 

The US Supreme Court this past week put yet another nail in the coffin of democracy with its conservative majority decision in the case of Louisiana v Callais—a decision that essentially guts hard-fought protection of minority voting rights as sanctioned in the Voting Rights Act of 1965, passed into law during the Civil Rights Era. As such, the Court has taken a major step toward bolstering white supremacy, a core goal of the Trump-hijacked GOP’s Project 2025, the overall aim of which is the destruction of democracy and the instituting of a far-right, single-party, autocratic oligarchy.

Combined with the nefarious 2010 Supreme Court decision in the case of Citizens United v Federal Election Commission—basically the “right” (according to SCOTUS) of corporations, lobbyists and billionaire oligarchs to buy politicians and laws—and we have the most anti-democratic “perfect storm” in post-World War II American history. Still more alarming, is the fact that the Supreme Court—once the guarantor of the common citizen’s civil and human rights—is showing ever more autocratic tendencies, and a penchant for ruling for rich over poor.

Suffice it to say that, in 2010, the Court upheld Citizens United by the nearest a nine-justice Court can get to a split decision. The decision was upheld by a five to four margin. This past week, the openly anti-democratic Louisiana v Callais decision was made by a six to three vote. Half of the six opinions disemboweling the Voting Rights Act were, of course, entered by Trump far-right appointees. A fourth was that of long-serving Clarence Thomas, whose Trump Era opinions and his wife’s political activism since 2020 have led many observers to define him as “a Trump sycophant”, while his alleged acceptance of numerous undeclared emoluments and favors from wealthy Republican backers have gained him a reputation as a friend of the oligarchy.

The dissenting opinions by the only three liberal members of the Court were particularly critical. They pointed to the clear and unprecedented damage the decision would do to voter and civil rights, and especially as regards the disenfranchising of black voters.

It is noteworthy that, like the repealing of Roe v Wade—another “Trump Court” decision that severely undermined civil rights (in this case the right of women to control their own bodies)—momentous rulings by the Court since Trump first took office in 2016 have all too often been in keeping with the autocrat-in-chief’s personal agenda and with the tenets of Project 2025 (the manifesto of the Trump-hijacked far-right GOP leadership). And the few times that this Supreme Court has deigned to rule against Trump’s most insane and fatuous proposals, the president has dubbed the justices “disloyal”—as if that branch of government owed fealty to the Executive—and often reminded the three Trump appointees that they owe their power to him. It gets harder and harder, then, to see the Supreme Court as the impartial arbiter that it once was—the non-political third leg of the stool supporting democracy, the branch that was there to keep the other two honest.

This was certainly not the case with the Citizens United decision. That initiative was bitterly opposed by the administration of that time, headed up by President Barack Obama. Obama described that ruling as “disastrous”, since it permitted special interests, corporations, and foreign entities to spend unlimited and undisclosed sums of money to influence US elections.  

Obama posited that Citizens United would cause "real harm" to democracy, because it would drown out the voices of average citizens. He wasn’t wrong. And he went as far as to call for a Constitutional amendment to overturn the ruling and restore power to Congress to regulate campaign financing. Despite his best efforts, however, Citizens United was allowed to stand. And Obama’s astute view of it is clearly on display today, with politicians being ranked, not by their records as to how well they have served the people, but by how many millions of dollars they manage to collect for their election and reelection campaigns.

Citizens United has thus practically guaranteed that politicians devote a great deal more of their time to campaigning and fund-raising than they spend doing the work of government and loyally serving their constituents. Never have there been more supine and less productive congressional sessions than under the two Trump terms, with the main action being the blocking by each party of the other’s initiatives, and the establishment of a climate in which healthy cross-aisle compromise is seen as unspeakable betrayal. 

Citizens United has also sounded the death knell for that part of the American Dream that sought to convince every schoolchild of my generation that they could one day be a representative, a senator, or even the president of the United States. Today, without the backing of some segment of the oligarchy, it is nearly impossible to get into office. The exceptions are few and noteworthy, and almost always well left of center (which, to an ever greater extent, is where democratic fervor remains alive and well). Citizens United has, then, been one of the most corrupting influences on today’s political scene.

The far-right majority decision in Louisiana v Callais further corrupts and represses democracy by attacking voter rights in the US, striking directly at the heart of democracy, by essentially returning the political system to its post-Reconstruction Era in which anti-black-vote “lynching” began to be accomplished more through gerrymandering and rigged legislation than at the end of a rope.

In practical terms, what the Court’s decision last week signifies is a direct and structural rollback of minority voting rights protections. In practical terms, this ruling tosses out decades of legal precedent aimed at fighting suppression of minority black votes and bolsters white supremacists’ goals aimed at returning African American political influence to its pre-Civil Rights Era insignificance.

The ruling is doing this in the following ways: It basically neutralizes Section 2 of the 1965 Voting Rights Act (VRA). This was the primary safeguard against racial vote dilution in the United States. The decision doubles down on this by also imposing an essentially unworkable legal standard, referred to as “intent-based discrimination”, which, in short, renders challenges to discriminatory voting maps nearly impossible to articulate. In this way, the Court’s cleverly-nuanced decision basically authorizes minority vote dilution, while disingenuously claiming neutrality.

Louisiana v Callais contradicts more than sixty years of legal precedent and pro-democracy congressional action. This is, in essence, the Trump-majority Supreme Court rewriting historic Civil Rights Law from the bench, giving clear advantage to white supremacist and Republican sensibilities, while snatching the life out of mechanisms enacted to protect minority voter rights from dilution and marginalization.

But the ruling goes far beyond this by essentially gutting the entire Voting Rights Act. That is to say, it does monumental harm to voter rights by devastating one of the most major achievements of the Civil Rights Era, and the life’s work and sacrifices of such civil rights icons as Reverend Martin Luther King, Justice Thurgood Marshall, John Lewis, Medgar Evers, Malcolm X, Jesse Jackson, and many more.

The Court has, after sixty-one years of legal precedent, and mostly successful application—despite continuing efforts to suppress black voters—declared the all-important Section 2 of the law “unconstitutional”. Section 2 is the very backbone of that piece of legislation, a law designed, precisely, to regulate and enforce the Fifteenth Amendment. That 1870 amendment prohibits the federal government and state governments from denying a citizen the right to vote based on "race, color, or previous condition of servitude". As the last Reconstruction Amendment, it aimed to enfranchise African American men, though its impact was severely limited for decades by discriminatory state laws, which will very likely now be re-enacted and updated in some form (mostly through blatant discriminatory gerrymandering) in many red states, and particularly in those of the former Confederacy.

This is not, by any means, a narrow ruling. It quite literally, and in practice, removes the only remaining nationwide tool to challenge racial gerrymandering, especially after racial gerrymandering already gained a leg up with decisions like Shelby County v Holder, which weakened federal preclearance tools to prevent states from discriminating against minority voters.

The Court appears to have purposely ensured that racial gerrymandering will be possible by introducing a so-called “intent standard”, which makes discrimination practically impossible to prove. This too is novel in that it erases long-standing results-based tests that determine “discriminatory effects” of redistricting, with a much more subjective requirement to “prove intentional discrimination.” In other words, the Court bases its decision on the theory of  non-racial party lines rather than on the factual discriminatory results of state election laws and redistricting. 

This matters because modern gerrymandering employs data-driven techniques (commonly known as  “cracking” and “packing”) that manage to dilute minority voting power with no need to use explicit racial language in the resulting voting rules. The “intent” twist means that courts will have no choice but to ignore blatantly discriminatory outcomes unless explicit racism is proven—something that will be nearly impossible to do.

The so-called “conservative” majority on the Court posits a theory of “colorblindness” that, in effect, actually enables inequality. In his defense of the ruling, Justice Alito argued that any use of race in districting violates equal protection for all voters. But civil rights defenders point out that what Alito fails to say is that, while the decision forbids the use of race to fix inequality, it effectively allows gerrymandered election maps that clearly produce racial inequality.

Constitutional experts are describing this aspect of the ruling as “weaponized neutrality”—meaning that it cavalierly ignores real disparities while at the same time further entrenching them. As such, what the Trump Supreme Court has done in practice with this ruling is to legalize minority voter discrimination that will be predictable, measurable, and intentional in effect, but deniable as a motive—thus providing a palpable victory for the white supremacist far-right.

In short, the decision proposes that race-conscious remedies are unconstitutional, but that race-correlated harm is perfectly permissible.

The arguments of the three liberal justices (Sotomayor, Brown Jackson and Kagan) make it clear that with this ill-advised and racially discriminatory ruling the Court is intentionally decimating a landmark civil rights law. They posit that the decision a) effectively dismantles fair protections for minority voters, abandoning the US Congress’s explicit mandate, and b) blithely ignores reality and US history. On this last point, the three liberal justices argue that Section 2 has existed precisely because, as history tells us, racial discrimination adapts and persists even in the absence of explicit intent.

The minority of three posits that the ruling actually invites race-based vote dilution. By eliminating effective enforcement, the Court seems to be intentionally opening the door to discriminatory maps nationwide. The liberal minority insists that the Constitution allows race-conscious remedies when necessary to ensure equal political participation, while the right-wing majority replaces such remedies with the non-reality-based theory that denies any ongoing inequality even exists.

As I have posited many times before, if a single person’s rights can be trampled with impunity, everyone’s rights are at risk. And whenever that happens, democracy has been breached, especially when that breach becomes part and parcel of institutional norms.

Former Supreme Court Justice John Paul Stevens warned that with the Citizens United decision of 2010, the Court had created a situation in which “laws are being bought and sold.” In doing so, he was identifying a crisis of political equality. In her dissent on the Court’s decision in Louisiana v Callais last week, Justice Elena Kagan warned that SCOTUS was “dismantling the Voting Rights Act piece by piece.” What her admonition identifies is a direct crisis of voting power for minority segments of the population.

If you put the effects of these two nefarious Supreme Court decisions together, you simply no longer have a system where government is responsive to the people as equals. It has been replaced, under the supreme authority of the Court, with a system in which authoritarianism rules, democracy is crippled, and influence is bought and sold while the fair impact of minority votes is intentionally diluted to keep a despot and his cronies in power.