The Supreme Court did something genuinely shocking on Thursday. It handed down a 5-4 decision in Allen v. Milligan that preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state.
Indeed, Chief Justice John Roberts’s opinion for the Supreme Court repeatedly chastises Alabama’s lawyers for their aggressive efforts to rewrite longstanding law in order to render much of what remains of the Voting Rights Act an empty husk. As Roberts writes in a particularly pointed swipe at those lawyers, “the heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [Voting Rights Act] jurisprudence anew.”
Roberts’s opinion was joined in full by all three of the liberal justices, and was joined almost entirely in full by Justice Brett Kavanaugh,
Of course, the idea that a court should follow precedent isn’t supposed to be controversial — indeed, it’s supposed to be highly unusual for a court to turn its back on one of its own precedents.
But this is the Roberts Court we are talking about here, a Court that, especially after former President Donald Trump remade its membership, has been extraordinarily willing to toss out seminal precedents — and to dismantle the Voting Rights Act.
In Shelby County v. Holder (2013), for example, the Court simply made up a new constitutional principle — the so-called “‘fundamental principle of equal sovereignty’ among the States” — and relied on this newly fabricated idea to neutralize the provisions of the Voting Rights Act that required states with a history of racist election practices to “preclear” any new election laws with federal officials. Similarly, in Brnovich v. DNC (2021), the Court invented a slew of additional limits on the Act that appear nowhere in the law’s text, such as a…
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