The Supreme Court of the United States is not well. Since the arrival of Ketanji Brown Jackson, who formally took her seat on Friday, she and her colleagues, at least outwardly, look like a happy, if awkward, family. But what was supposed to be a summer of high fives and victory laps for the Republican justices, high on their own supply of archconservative wins and precedent-smashing, turned out to be a period of recriminations and finger-pointing. One need only get a load of Justice Samuel Alito’s extraordinary statement to The Wall Street Journal last week, lamenting how Justice Elena Kagan and many others aren’t celebrating the reversal of Roe v. Wade and other recent lowlights, but instead have taken to questioning whether the Supreme Court is even behaving like, well, a court of law.
“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito said. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” Later, Gallup published yet another poll reflecting that the public’s trust in the Supreme Court is at historic lows. The stench of illegitimacy lingers.
Yet the right-wing justices appear undaunted by sinking approval ratings. They don’t care how the public, let alone the legal academy, is processing their sustained shocks to the legal system. This committed bloc is already in too deep with its own counterrevolutionary project, and the term that began on Monday leaves no doubt that the rollback of half a century of American law in Dobbs v. Jackson Women’s Health Organization was only a warm-up act. Unconcerned with realities on the ground, Alito and justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett tried to reassure women voters that, despite the erasure of their constitutional right to terminate a pregnancy, they nonetheless were “not without electoral or political power” to change state laws or elect candidates committed to abortion rights.
But what if the very rules of what remains of our democracy are rigged so that Republicans always win? Or so that the voters they represent, increasingly white and in the minority, get outsize influence in the political process? Chief Justice John Roberts, powerless though he was in Dobbs, will very much be in the driver’s seat this time around as the high court sets out to answer those questions, steering the reactionaries to his right through a series of cases where he has a real shot at fulfilling his lifelong project of eliminating any and all consideration of race in government decision-making—from voting rights legislation to affirmative action in college admissions. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts’s oft-ridiculed 2007 quote in a school integration case, may yet get the last laugh.
Yet Merrill v. Milligan, a racial gerrymandering case the Supreme Court is set to hear on Tuesday, is nothing to laugh at. In February, five conservative justices, sans Roberts, blocked a lower-court ruling that ordered the state of Alabama, which is 27% Black, to redraw its congressional maps so that two of its seven districts represent this demographic reality. The judges who ordered the state to go back to the drawing board said that Alabama officials were in violation of Section 2 of the Voting Rights Act of 1965, which over time has been interpreted to require that states may not dilute Black voters’ ability to elect candidates of their choice. Yet to the state of Alabama, and possibly Roberts and his comrades, sorting districts by race is itself a form of discrimination. “That would require the States to prioritize race always in redistricting,” Alabama said in its brief filed with the court. “That is not what [Section 2] commands. And if it were, [Section 2] would be unconstitutional, for districts that sort voters on the basis of race ‘are by their very nature odious.’”
Did you catch that? Alabama is suggesting in no uncertain terms that a key section of the Voting Rights Act is itself unconstitutional if understood to allow Black voters to have political power that’s proportionate to their numbers. That’s catnip for Roberts, who may just finish what he started in 2013’s Shelby County v. Holder, once and for all dealing a death blow to the landmark civil rights statute. Yet as gerrymandering expert Michael Li observes, Alabama’s Black Belt, beyond the reality that its voters are by and large Black, is held together by a number of other communal factors unrelated but inextricably linked to race—from health care outcomes to economic standing to the likelihood of being audited by the Internal Revenue Service. If Black voters cannot band together to ensure their political representatives stand up for their interests, then the Supreme Court may well bury the historic Voting Rights Act and call it a day.
A similar, race-blind logic is in play in a pair of affirmative action cases, involving Harvard and the University of North Carolina, that the Supreme Court has agreed to hear later this month. Both of these cases were grown in a test tube: They’re the brainchild of Edward Blum, a longtime conservative activist who has been on a decades-long crusade to end the consideration of race in college admissions and other government programs. The twist in these cases is that, rather than recruit a middle-of-the-road white litigant to challenge admissions policies he deems repugnant under the Constitution, Blum, through his organization Students for Fair Admissions, enlisted a cadre of anonymous, high-achieving Asian students who claim they were denied admission on account of their race.