Alabama Strikes Out
Not even the Roberts Court is willing to brook open defiance to its rulings.
Few things are more difficult than getting the Roberts Court to side against the Republican Party in a voting-rights case, but the state of Alabama has managed to do so twice in one year.
Two years ago, Alabama sought to diminish the voting power of its Black population by creating only one majority-Black congressional district, despite the fact that the state’s Black population—more than a quarter of its overall population—would sustain two. The Voting Rights Act contains a requirement that under certain conditions, states must draw majority-minority districts, a provision meant to counteract the long history of American legislators racially gerrymandering districts to diminish the influence of nonwhite voters.
The Supreme Court, in June, affirmed a lower-court ruling that required the state to redraw its maps to include a second majority-Black district or something “close to it.” Alabama officials, who feared that a second such district would add a second Democrat to Alabama’s congressional delegation, decided they would defy a direct order from the Supreme Court, instead drawing a second district without a Black majority. In effect, they were telling the justices, There must be some mistake. Don’t you know who I am?
Yesterday morning, the Court rejected Alabama’s appeal. The original ruling had been 5–4, with Chief Justice John Roberts and Justice Brett Kavanaugh siding with the three Democratic appointees, but the new order noted no dissents, making the rejection of Alabama’s request all the more forceful.
Alabama’s Attorney General Steve Marshall, illustrating the judgment that has already seen his argument rejected twice, decried the Supreme Court’s demand for “separate but equal districts.” The suggestion that not allowing white people to discriminate against Black people is racist against white people is absurd, but I suspect some of the justices will nevertheless find it persuasive.
Does this mean the Roberts Court has diverged from its right-wing agenda of weakening organized labor, gutting antidiscrimination laws, diminishing the authority of regulatory agencies, supporting state imposition of socially conservative values on people who do not share them, and siding with virtually every corporate request that reaches its docket? Absolutely not.
The Alabama-voting-rights case simply put the Court in an impossible position: If the right-wing justices did what the state wanted, political actors would have no reason to obey any ruling the Court ever makes. The state was asking the right-wing justices to undermine their own authority so that the Republican Party could retain one more guaranteed congressional seat in Alabama. As the attorney Kate Shaw wrote in The New York Times earlier this month, if the Supreme Court rewarded Alabama’s defiance, it would mean that “defiance by other political actors, both left and right, can be expected, and will be justified.”
Indeed, it is precisely because accepting Alabama’s defiance would have endangered the Roberts Court’s agenda that the right-wing justices who wished Alabama to prevail offered no dissent from the decision to tell them to go pound sand.
There are several lessons to be learned from this episode. One is that many of those shrieking about the Supreme Court being “delegitimized” by liberal criticism of its rulings are fine with conservatives ignoring those rulings entirely if they oppose them. A second is that despite their insistence that the justices are not “partisan hacks,” Alabama Republicans clearly believed that no request was too absurd or unlawful for the right-wing majority to grant. A third is that even the most ideological right-wing justices will not go along with conservative demands if that means depreciating their own power.
But there is no reason to believe that the Court will not continue to give conservatives precisely what they want almost every time. And where the conservative justices refuse to grant do-overs? They rule as they do not because they are liberal or because they are any less committed to right-wing ideological zealotry, but because repealing the 20th century is a cause too important to risk over something as fleeting as a congressional seat.
