Opinion: The Supreme Court isn’t bothering to hide its designs on our democracy
"That has been a resoundingly successful assault on democracy. But it has also damaged the court’s image. So you’d think the conservative justices might be reluctant to be seen reaching down to put a thumb on the scale for Republicans quite so often and so blatantly.
On Wednesday, in an unsigned opinion on the “shadow docket,” the court granted emergency relief to Republicans in Wisconsin, who objected to a new map of legislative districts the state Supreme Court had decided on.
The background is a dispute between the Republican legislature and the Democratic governor over redrawn state legislative maps. Because they failed to agree, it was left to the Wisconsin Supreme Court to decide. It invited submissions while laying out criteria, such as a directive not to depart too dramatically from currently existing maps.
In the end the state Supreme Court chose a map submitted by the governor, which the justices said satisfied their criteria while likely not running afoul of what remains of the VRA. But the U.S. Supreme Court struck that ruling down.
To simplify, the governor’s map added an additional majority-minority district, arguing that the VRA required it (to protect minority representation). Republicans contested this, claiming it violated the Constitution’s equal protection clause as a deliberate racial gerrymander. The state Supreme Court ruling in favor of the governor’s map would have allowed Republicans to argue their case at greater length when this was litigated more fully.
The main point is that the U.S. Supreme Court didn’t have to inject itself into this case at this point. As election law expert Richard L. Hasen explains, the court gratuitously leaped at the chance to decide the case before it was heard in full, in a legally “bizarre” way that “narrows the scope” for district lines to be drawn with an eye toward protecting minority representation.
It’s worth noting that existing Wisconsin state legislative maps are already an absolutely brutal Republican gerrymander. The Democratic governor’s proposed map is only a bit friendlier to Democrats than Republicans preferred.
Now consider the big picture. The court’s legitimacy in the eyes of the public is clearly eroding. This comes as the court is showing newfound determination to weaken voting rights protections for minority voters, leading observers to discern a new level of hostility to democracy.
Meanwhile, one of the major parties is restricting access to voting and further entrenching counter-majoritarian tactics wherever possible. In that context, the use of the truncated shadow docket process to advance a ruling that appears “bizarre” in its use of the VRA seems gratuitously provocative.
“It reinforces how willing the conservative majority is to use emergency shadow docket orders based upon new — and deeply contestable — understandings of the Voting Rights Act,” Stephen Vladeck, a law professor at the University of Texas at Austin, told us.
Justice Sonia Sotomayor seemed to gesture at this gratuitousness in her dissent (which was not joined by Justice Stephen G. Breyer). The ruling is “not only extraordinary but also unnecessary,” Sotomayor wrote.
“This is part of a pattern,” Vladeck said. Amid criticism of the court’s hostility to democracy, Vladeck added, “we keep seeing more signs of a court that, rather than moderating its tone in response to those charges, is doubling down.”
There’s a deep tension here. On one hand, it’s true that the courts — including the Supreme Court — stood fast against Donald Trump’s effort to destroy our political order and upheld the rule of law under extraordinary duress. It’s a serious mistake to downplay or delegitimize that.
On the other, the Supreme Court is “basically removing all the obstacles in the way of Republicans ruling as a political minority in many states and the country at large,” Lee Drutman, a senior fellow at New America, told us.
The conservative majority’s hostility to voting rights has left state courts as a crucial place for those rights to be protected — if not reliably, then at least sometimes. In recent cases, those courts, interpreting their own states’ constitutions, have acted in ways that made voting easier and not harder, and maps fairer and less skewed.
At times, the U.S. Supreme Court has let those decisions stand. But the Wisconsin case appears to demonstrate a readiness to overrule state courts in ways that are legally questionable but play to Republicans’ raw political advantage. And the high court’s conservatives don’t seem shy about it."