28 July 23
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The state’s refusal to comply has been met with a revealing silence on the right.
Openly defying a Supreme Court order is rare—almost as rare as conservative justices recognizing that the Fifteenth Amendment outlaws racial discrimination in voting. Under Section 2 of the Voting Rights Act, states are sometimes required to draw districts with majority-minority populations. This requirement exists because after Reconstruction, one of the methods southern states used to disenfranchise their Black populations was racially gerrymandering congressional districts so that Black voters could not affect the outcome of congressional elections. Earlier this year, Alabama asked the Supreme Court to further weaken the Voting Rights Act so as to preserve its racial gerrymander.
More than a quarter of Alabama’s population is Black, but the state’s Republican majority has racially gerrymandered that population into a single district out of seven because it fears those voters might elect Democrats. The partisan motive is no excuse for racial discrimination—1870s Democrats also had a partisan interest in disenfranchising Black voters, who were then reliably Republican. After failing to get the Supreme Court to overturn Section 2, Alabama decided that following the law was optional.
Alabama’s open rejection of a Supreme Court ruling comes in the midst of a conservative campaign accusing liberals of “delegitimizing” the Court by criticizing its lurch to the right and the coziness of the Republican-appointed justices with billionaire political donors who have interests before the Court.
“This is another front in the political campaign to delegitimize the Supreme Court, with a goal of tarnishing its rulings and subjecting it to more political control,” The Wall Street Journal editorialized in May about Democratic hearings on potential ethics legislation. “Most of all, the Court is no longer a backstop legislature for progressives to impose policies they can’t get through Congress.”
Whatever else this Court may be, it can now be fairly described as a backstop legislature for conservatives to impose policies they cannot get through Congress. Also, the Court hasn’t had a liberal majority since the Nixon era, so conservative complaints that the Court was a “backstop legislature for progressives” are not an expression of opposition to “political control” over the Court, but a lament that Republican appointees possessed only a slim one-vote majority for most of that time, which meant they didn’t get their preferred outcomes as often as they wanted. And the way that the conservative movement seized the Court was precisely by “tarnishing its rulings” for more than a half century. At one point, the right-wing legal martyr and originalist Robert Bork was so frustrated by the Court being insufficiently conservative that he declared, “As our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity.” In the right’s view, the judiciary was an “imperial judiciary,” an “out of control branch of government.”
Indeed, although it now accuses the Court’s liberal critics of “delegitimization,” the Journal defends the current Court by saying it is merely undoing the “legal mistakes of recent decades.” What the Roberts Court’s defenders truly fear is the political strength of a critique of the Court as overreaching and out of touch with the majority of the electorate, because as conservatives well understand, that is a critique that has the power to influence elections and ultimately shape the Court itself. They understand this because that is one reason the 6–3 right-wing majority on the Court came to be in the first place. This is why questioning the Court’s legal reasoning and sweeping power is a privilege that must be exclusively reserved for conservatives.
The fear is clearly not that rogue actors will ignore the Court’s rulings. If the pervasive right-wing alarm over liberal criticism of the Court as “delegitimizing” has been deafening, the conservative response to Alabama openly flouting the Court’s ruling has been muted. The Wall Street Journal’s editorial page, for example, so protective of the Court’s “legitimacy,” when it comes to substantive public criticism, did not view Alabama’s refusal to obey the justices as an event worthy of comment.
One would think that verbal criticism of powerful institutions, an essential part of life in any democracy, would be less an act of “delegitimization” than an open challenge to the rule of law. But Alabama is defying the rule of law in pursuit of conservative causes—more Republicans in Congress; voiding constitutional prohibitions on racial discrimination—and so it’s fine.
All of this renders the Journal’s hand-wringing rather ironic: It is clear the right that views the Court as a political instrument for imposing conservative policy, and when the Court fails to heed its obligation to do so, they can simply ignore it. This is consistent with the movement’s Trumpist turn toward the belief that the legitimacy of any practice or institution—elections, fundamental freedoms, the state itself—is conferred not by the consent of the governed but by the consent of the right. You have an inalienable access to the franchise as long as you vote Republican. You have free speech as long as you say conservative things. The free market is free only when it leads to conservative outcomes. The Supreme Court’s rulings are the law of the land, except if those rulings are not what conservatives want.
Alabama’s maps will likely be challenged in court. But one reason the state’s Republican leadership may feel comfortable with ignoring the justices in the first place is that Brett Kavanaugh and John Roberts were so clearly holding their noses in overturning a clear act of racial discrimination in voting that they might not be inclined to do it a second time. As Matt Ford reminds us, in striking down part of the Voting Rights Act in 2013, Roberts argued that “things have changed dramatically” in the South, and so those protections could be disregarded. That was naive at best then; Alabama is intent on illustrating why now.
Maybe Alabama is bluffing. Or maybe it simply doesn’t believe that someone like Roberts, who has been dreaming of gutting the Voting Rights Act since he was in his 20s, really means it. Or perhaps Alabama is reminding the Republican-appointed justices that the Court’s legitimacy depends on its obedience to the conservative movement, whose view is that the only legitimate outcomes—or laws, or governments, or presidents, or Supreme Court rulings—are conservative ones.
It is that position, and the Court’s reliable adherence to it, that has precipitated its loss of legitimacy. No liberal criticism could be as devastating to the Court’s credibility as the justices’ own actions, or the expectations of their defenders.
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