The Supreme Court Has Invented a Right to Discriminate

The Atlantic Gift Article: “…Alabama willfully drew a map that flouted the District Court’s preliminary injunction and hoped that this Court would eventually see things its way,” Justice Sonia Sotomayor wrote in her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “After today, it is hard to call Alabama’s cynical gambit anything other than a success, and the Court’s rewarding of Alabama’s behavior anything other than a blow to the rule of law.” The majority opinion was unsigned. In it, the judges argued that the lower court had “failed to follow our instruction” in ordering the creation of the new district. This was a reference to the April decision in Louisiana v. Callais, in which Justice Samuel Alito announced that “race and politics are so intertwined” that there are almost no circumstances under which the Fifteenth Amendment’s prohibition on racial discrimination in voting actually applies…Now here was an example of exactly what Alito was talking about. “States are free to decide for themselves whether last-minute changes to an election are in their best interests,” the justices wrote this week. If a Republican legislature decides that a redistricting plan to suppress the power of Black voters is “in their best interests,” they may proceed. The implications of this case go far beyond one congressional district in one state. In Callais, Alito issued a classic Alito disclaimer: insisting he was not doing the thing he was about to do. The Court, he wrote, was not effectively nullifying Section 2 of the Voting Rights Act when it determined that Louisiana drawing a second majority-Black district (out of six total, in a state that is one-third Black) was an “unconstitutional racial gerrymander.” This week’s ruling on Alabama makes explicit what was merely implied in Callais. The Court’s logic may apply only to districting for now—but there is no obvious reason to limit its application to that. The Roberts Court has replaced the Fifteenth Amendment’s ban on racial discrimination in voting with a right to engage in racial discrimination in voting…”

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