SCOTUS Destruction Gets Exposed

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2:27Michael Popok:Sometimes you got to take the United States Supreme Court and all of its actions and that of the MAGA-6 and put it through a full body scanner. You know, one of those full body MRIs, an x-ray machine, if you will. And the only way I know to do that is to put into one place collective brilliance, a murderer's row, if you will, of top constitutional scholars like Professor Leah Littman and people like Ellie Mastal and Mataba Denny joining court accountability action just moments after the last decision at this United States Supreme Court term dropped. And we did it here on Legal AF. And here's a clip of that roundtable you don't want to miss about voting rights, the Voting Rights Act, and how we got here, and how we can defeat the Roberts Court.

3:18Michael Popok:Play the clip. Really glad that you could explain to our listeners. And if you're just tuning in, we're here on Legal AF with a murderer's row of legal analysts to talk about this term, Supreme Court, and what we can do to fix it. And we're segueing to that, what we can do to fix it. Leah, I'd love to pull you in on another element of how the court just rewrites things when they want to, which is obviously Calais and the Voting Rights Act. We have this long tortured history of Congress passing the VRA, the Supreme Court making edits to it as it sees fit, Congress addressing those edits, and then the Supreme Court gutting it anyway.

3:55And this sort of takes us to the point that when legal scholars who are apologists for the court say, well, Congress can always address it, the VRA stands in stark contrast as an example where Congress did try to fix it, the court gut it anyway. Can you walk us through some of that and explain why it's not so easy to just pass a statute? Yeah, absolutely. So the Voting Rights Act was initially passed in 1965. It had two main provisions, Section 5, the preclearance process, which of course the court ended in Shelby County versus Holder a decade ago, and also Section 2, a nationwide ban on discrimination in voting.

4:31And in a decision, City of Mobile versus Bolden in the 1980s, the Supreme Court interpreted the Voting Rights Act, and specifically Section 2, to prohibit only intentional discrimination in voting. And of course, Congress and civil rights activists immediately understood that that would be a recipe to apologize for all kinds of racist voter suppression and voter discrimination. And so Congress amended the statute to explicitly prohibit unintentional discrimination as well. They amended the statute over the objections of the administration of Ronald Reagan, who did not want to expand the Voting Rights Act.

5:05And one of the lawyers who was working in the administration, authoring memo after memo about how the administration shouldn't support an expanded Voting Rights Act, was John G. Roberts. So three years ago in Allen v. Milligan, the court heard what was an existential challenge to Section 2 of the Voting Rights Act. In that case, Alabama argued that the Voting Rights Act would effectively be unconstitutional if the statute actually did prohibit unintentional discrimination. The court, by a five to four vote, rejected that theory in Milligan, in Allen versus Milligan, and invalidated a set of Alabama maps that included only one majority Black district out of seven.

5:45So now fast forward to two years later, because technically this is on the Supreme Court's docket two years or last term, and the court hears a case out of Louisiana, Louisiana versus Calais. And that case involved a challenge to a set of districts that the state had drawn to comply with the Voting Rights Act after a court said their initial set of maps violated the Voting Rights Act. And the question in the case was just whether the remedial maps were themselves unconstitutional. The Supreme Court didn't want to resolve the case on that basis and instead rewrote all the questions to invite a reinterpretation of the Voting Rights Act and an assessment about the extent to which the Voting Rights Act was constitutional.

6:25And In Louisiana versus Calais, Justice Alito, writing for six justices, says the Voting Rights Act really only prohibits circumstances that give rise to an objective likelihood of intentional discrimination. The court made it virtually impossible to establish violations of Section 2 for the reasons Mediva said. Basically, it is never going to be possible to draw an additional majority Black district while retaining the same partisan balance that a Republican-controlled legislature wants to because there's not going to be a majority Black district in the South that votes Republicans. So the court made it simultaneously impossible to establish a violation of the Voting Rights Act, effectively gutting the express explicit congressional amendment that Congress made to the Voting Rights Act to prohibit unintentional discrimination, and then also added a constitutional aspect to the court's ruling, saying that under the Reconstruction Amendment, Congress has only a limited authority and can really only prohibit occasions that give rise to intentional discrimination.

7:24This, of course, is a ridiculous interpretation of the Reconstruction Amendments for reasons I won't get into. But the point is, the court read out a congressional amendment to a statute and declared that any congressional amendment that sought to revisit the court's decision in Louisiana v. Calais would be struck down as unconstitutional. So it is impossible for Congress to pass a new Voting Rights Act that would actually reach circumstances like the ones that courts for decades had said violate the Voting Rights Act. So it's never going to be as simple as Congress can just pass a statute and reverse a decision of the Supreme Court, given that the Roberts Court is just full of judicial supremacists who have imposed themselves as a veto over essentially any law that a Democratic Progressive Congress would pass or that a Democratic administration would promulgate as a rule or regulation, as Mike was indicating.

8:16So the solution cannot just be have Congress pass a new law. The solution has to be have Congress pass a new law and also pass laws that address the threat that the Supreme Court presents to those very laws.

8:29Michael Popok:We sit at the intersection of law and politics on Legal AF every day, every hour. If you like that kind of content, you want to support court accountability action and the contributors like that, then hit the free to subscribe button. Hit the free subscribe button. Democracy demands it. Our long legal AF. Fourth of July counter-programming demands it. And this is the way for you to vote early and often for legal AF. I appreciate you. I'm Michael Popok. Until my next report. Can't get your fill of legal AF? Me neither. That's why we formed the legal AF sub stack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the sub stack.

9:10Michael Popok:You'll find the court filing and the oral argument there, including a daily roundup that I do call. Wait for it. Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.