It’s as if we are back again in 1965 in Selma before “Bloody Sunday,” when Alabama state police violently attacked peaceful demonstrators at the Edmund Pettus Bridge, leading Congress to enact the 1965 Voting Rights Act. Only this time, it’s five Supreme Court justices effectively blocking the path of Black Alabamians seeking to protect their right to vote.
On Feb. 8, in Merrill v. Milligan, in an emergency docket ruling, the reactionary 5-4 Supreme Court majority shredded a three-judge panel’s painstaking and convincing Jan. 24 decision enjoining Alabama from using its new, racially discriminatory congressional map in future elections.
There is a discernible battle cry being sounded between the lines of the majority’s sole expression of its thinking in Justice Brett Kavanaugh’s concurring opinion, joined only by Justice Samuel Alito: a Republican House majority in 2022, by any means necessary. Come hell or high court.
This emergency order — in the court’s “shadow docket” — was issued with no full briefing or hearing. What was Kavanaugh’s superficial rationale for tossing out the three-judge panel’s ruling, by two Donald Trump appointees and a Bill Clinton appointee, invalidating the Republican Alabama legislature’s latest racial gerrymander?
Kavanaugh effectively said: Now is too close to the 2022 elections to tell a state to redraw any lines. Courts can’t be discarding redistricting maps three-and-a-half months before primaries and nine months before Election Day.
Yet there was no denial that Alabama’s new map blatantly discriminated against Black voters — and no suggestion that the challengers could have moved any sooner or faster.
Shades of Senator Mitch McConnell. His ”too close to an election” power grab in February 2016 — nine months before Donald Trump’s election — stole a court seat from the moderate Merrick Garland and gave it to arch-conservative Justice Neil Gorsuch, whose vote was also crucial to this shameful result.
Kavanaugh’s even more bizarre claim of election proximity supposedly justified keeping Alabama’s distorted congressional election map in place. It was a map that packed so many Black voters into one congressional district that it looks like a Rorschach test for racists.
The lower court held that the map invidiously and intentionally discriminated against Alabama’s Black minority. In a state that is 27 percent Black, the legislature’s transparent gerrymander cut from two to one the number of majority Black districts, reducing 28 percent representation in the House to 14 percent.
The lower court’s decision had enjoined Alabama from so radically diluting Black representation. The Supreme Court ruling also ratified the Republican Legislature’s unexplained rejection of an updated map that would have included two majority Black districts.
Kavanaugh offered no account of his fanciful suggestion that drawing a racially nondiscriminatory map proposed by the plaintiffs would be unduly difficult or too time-consuming or would cause problematic uncertainty months before the upcoming midterm election.
In light of the lower court’s careful evaluation of a massive and extraordinarily well-developed factual record, overturning its decision was too much even for Chief Justice Roberts, no champion of voting rights and certainly no fan of the 1965 Voting Rights Act.
It was Roberts who wrote the court’s infamous 5-4 decision in 2013 in Shelby County v. Holder, gutting the preclearance provision at the heart of that act. He also authored the 5-4 decision in 2019 in Rucho v. Common Cause, throwing open the door to partisan gerrymandering by proclaiming federal judges incapable of providing a manageable remedy.
Not even in Rucho had the court gone so far as to renounce a federal judicial role in correcting racial gerrymanders. The chief justice had finally had enough, writing in his Merrill dissent that “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Dissenting in a separate opinion joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan flayed the majority decision. She noted that, in the precedent on which Kavanaugh relied, an election was weeks, not months, away. She castigated the majority for again deploying its “shadow docket” and closed with eloquence: Today’s “decision does a disservice to our own appellate processes. . . . It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. . . . And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”
It’s hard to take much comfort from the small win for transparency in the majority’s monstrous ruling — at least Kavanaugh wrote something. In the recent past, the Roberts court has used the emergency docket to issue important decisions summarily — one-line orders, with nothing else said, reversing a lower court’s well-reasoned ruling. Because critics blistered the court for making law — or unmaking it — without its reasons showing, justices apparently now feel obliged to give more explanation.
The consolation in that added visibility is that the blatantly illogical, and thus transparently partisan, concurring opinion reveals even more clearly to voters that democracy and the venerated principle of “one person/one vote” are on the ballot in 2022. And so is the future of Supreme Court picks and our hope for restoring the court’s sometime role as a protector of the Bill of Rights, equal protection, and the rule of law.
If there was ever a time for voters to organize and cast their ballots as though their lives depended on it, it’s now.
Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard and author of several books about the Constitution and the Supreme Court. Follow him on Twitter @tribelaw. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.