SCOTUS: What Three Dissenters Can Do Now

[marmar]

What Three Dissenters Can Do Now
Jackson, Kagan, and Sotomayor are perfectly aware of their situation.

BY DAHLIA LITHWICK AND MARK JOSEPH STERN
OCT 05, 20225:45 AM


(Slate) Two things were obvious after Tuesday morning’s oral arguments in Merrill v. Milligan, one of the term’s most important voting rights cases: One is that there will be three female justices on the losing side of virtually every single important case for the foreseeable future. And two—they are not going down quietly. All three of Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson brought the full force of history, text, original intent, and statutory purpose to the table during arguments about the enforcement of the Voting Rights Act—values the court’s conservatives purport to espouse. In so doing, they highlighted that the state of Alabama, aided and abetted by the court’s so-called textualists and originalists, are engaged in a radical project to engineer a new era of “race blindness” in voting that violates both the Constitution and the Voting Rights Act. That these oral arguments are now broadcast live means that Americans could listen to three women, one of whom is Black, one of whom is Latina, and one of whom is Jewish, administer nothing short of a beat down to both Alabama’s solicitor general, Edmund LaCour, and their own colleagues on the bench.

Merrill is a challenge to an Alabama gerrymander that packed most of the state’s Black voters into a single district and spreads the remainder throughout white districts where they would not be able to elect their preferred candidate, a trick known as “packing and cracking.” As a result, Black voters control just one of seven congressional districts despite making up nearly a third of the population. The Supreme Court has previously held that such race-based vote dilution is impermissible under both Section 2 of the VRA and the 14th Amendment, so the case should have been straightforward. When faced with this lawsuit, however, Alabama turned those ideas on their heads by insisting that any maps that take any race into account violate the Constitution. In other words, redressing illegal racial discrimination is, itself, illegal race discrimination. This is a parody of an argument about the need for race-blindness, but it’s an idea that is ascendant this term, here and in the upcoming affirmative action and Indian Child Welfare Act cases.

The problem with this strategy, as Kagan immediately pointed out, is that when the Supreme Court took away Section 5 of the Voting Rights Act in Shelby County, it promised that Section 2 would be available to remediate racialized voting measures. When the Supreme Court chipped away at Section 2 of the VRA in Brnovich v. DNC, it glibly promised the law would still be available in cases where states diluted the power of racial minorities’ votes. But now the court has a vote dilution case in Merrill, and that promise has proved hollow; instead, the court is preparing to take away the use of Section 2—and with it, the VRA—altogether. What’s left, Kagan asked, after that?

Link to tweet

Kagan also said that under existing precedents, Alabama could only prevail if the court ignored or overruled existing law. Of course, ignoring and overruling existing law is the raison d’etre for the new conservative supermajority, for which precedent is a mere annoyance on the way to its final destination. ...............(more)

https://slate.com/news-and-politics/2022/10/what-liberals-can-do-now-scotus.html

[lindysalsagal]

1. I noticed this attempt at being color-blind during the arguments but

all these cases and laws really go right over my head. The men know they're gonna get called out on all their BS from now on, and these women cannot be silenced. I have always heard that they make deals behind closed doors, so, it's possible the 3 of them can win on some of the most important points from time to time if they make other concessions. I trust them to carefully choose when and where to do so on our behalf.

Wouldn't it be fun if the men decided it wasn't fun any more and retired.....

[kelly1mm]

2. So basically they can do ........ nothing? nt