The Supreme Court gutted the Voting Rights Act today, clearing the way for the GOP to racially gerrymander us back to the days of Jim Crow voter suppression. In a 6-3 decision on Louisiana v Callais, the Court “all but nullified the last remaining provision of the Voting Rights Act of 1965,” restricting the people’s ability to “block discrimination in how districts are drawn, and ultimately how their communities are represented.”
With so much at stake, we need to know what we are up against. Contrarian contributor Katie Phang sat down for a special emergency interview with legal scholar Leah Litman. Together, they break down the “brutal and cynical” decision and detail the ruling’s racial and electoral ramifications. The two shed light on why this ruling isn’t surprising and what the inner workings of the Supreme Court bench tell us about the future of voting rights.
Leah Litman is a professor of law at the University of Michigan and a former Supreme Court clerk. She also cohosts the Strict Scrutiny podcast. She received the Ruth Bader Ginsburg award for her “scholarly excellence” from the American Constitution Society.
The following transcript has been edited for formatting purposes.
Katie Phang
Hey everybody, it’s Katie Fang here at The Contrarian. We’re having a special episode. As we know, a huge decision came out from the Supreme Court of the United States today, Calais v. Louisiana. The ramifications of which are just so profound. I could not think of anybody better with whom to break down the details than my good friend and brilliant legal scholar, Leah Lipman, and also a Fellow Swifty. Hey Leah, thank you for joining me to, commiserate over Calais.
Leah Mihalchick Litman
Thanks for having me. I mean, what a just brutal, cynical opinion.
Katie Phang
So listen, in fairness, you and I, before we hit record, acknowledged that we probably were not totally surprised by this decision. The oral arguments that took place a few months ago kind of did not bode well. for, the survival of the map from 2022 that had two majority Black districts, but I kind of wanted to get your immediate hot take on this majority opinion that got this screed, as I will call it, in this 6-3 decision.
Leah Mihalchick Litman
Yeah, so it’s not unexpected, particularly if you heard the oral argument, or frankly, if you’ve been following the Supreme Court and what it’s done to the Voting Rights Act over the last 15-some years, but that doesn’t make it any less appalling, because what the Supreme Court did in this case is it effectively nullified what remains of the Voting Rights Act, the nationwide ban on discrimination in specifically with respect to redistricting claims, because the court made it virtually impossible For any plaintiff to show that a state would ever have to draw an additional majority-minority district, i.e. a district where minority voters would have the opportunity to actually elect the candidate of their choice.
Katie Phang
So, I want to drill down a little bit on what you just said. Number one. Prior to today’s decision, there was the explicit acknowledgement, would you agree, by Congress itself. That the ability to prove intent on discrimination is virtually impossible, because most people are not stupid enough, frankly. to create an evidence trail wherein they’re saying, I want to discriminate against X group of minorities, so I’m going to draft this map, or, you know, rig this map in a way that’s gonna do so. And that is why Section 2 of the VRA, as drafted by Congress, and as amended by Congress. pretty much said, we may not be able to have direct intent, so why don’t we just show that if it has a result of discrimination, that that is sufficient? Is that a kind of fair, kind of, I guess, synthesis of what it used to be?
Leah Mihalchick Litman
It’s completely fair, and it’s just one of the many reasons why this decision is so undemocratic, because the Voting Rights Act was initially passed to have this ban on nationwide voter discrimination. And then the Supreme Court interpreted the Voting Rights Act back in 1980 to prohibit only intentional. racial discrimination in voting. And Congress said, that’s not enough, because we know states are going to be able to kind of trump up these support on, exactly, supposedly non-racial reasons for why they’re passing laws and policies that just so happen to have the effect of disadvantaging voters of color. So Congress amended the Voting Rights Act to also prohibit laws and policies that result in discrimination on the basis of race, or disadvantageous differential treatment on the basis of race. And yet, in this opinion today, Justice Alito wrote that they were basically confining liability under the Voting Rights Act to, quote, only when the circumstances give rise to a strong inference that intentional discrimination occurred.
Katie Phang
Okay, so intentional has come back around. It’s been zombified, it sounds like to me. Alito decided, well, if it’s intentional, then it’s there. I mean, which is why I have said now, about this, it didn’t explicitly overturn Section 2 of VRA. form, but in fact, and in function, right? I mean, it’s pretty much gone. So let me ask you this kind of, maybe, separation of powers question. Is it within the judiciary’s purview to be able to do this when on its face, Congress had a very explicit, clear textual, you know, language. I mean, it really isn’t a complicated statute to read whatsoever.
Leah Mihalchick Litman
No, there’s so much to say there. One, I agree with your assessment that the court effectively overturned the Voting Rights Act, even though it says it’s not doing so. And indeed, Justice Kagan’s dissent basically says the court won’t own up to what its holding is. It understates the holding. But no one should mistake the court’s ruling as insignificant or minor or going small when it could have gone big. I mean, she says the court eviscerates what remains of the Voting Rights Act, and they did. And basically, Sam Alito and the other Republican appointees decided that they know better how to advance the project of Reconstruction than multiple Congresses that enacted the Voting Rights Act that expanded it, and that reauthorized it. So, is this something that the court is supposed to do? No, but it underscores how you can’t have democracy reform without Supreme Court reform, because you can pass the best voting rights.
Katie Phang
legislature.
Leah Mihalchick Litman
and voting rights protections in the world. And the Voting Rights Act was one of them. It transformed the country into a multiracial democracy. And now the court has demolished it. Because it says we can invalidate it, we can interpret it to mean nothing, and so, again, you can have the best Congress pass the best laws in the world. And if they’re unwilling to tackle the Supreme Court’s partisan alignment and their authority that they’re asserting, those laws just aren’t gonna go anywhere.
Katie Phang
Yeah, Kagan used, I thought, the perfect adjective. She said, the majority’s opinion is understated, even antiseptic. Right? And eviscerate cannot be confused with something gentle. Eviscerate really, pretty much, is the strongest action verb to use here. So she does call out her colleagues on the majority side. You know, I do want to ask you this, because I feel like… the punting of responsibility here is pretty profound, right? Because, to your point. So now, Congress is supposed to take up the laboring oar of doing what? Stating the obvious, which they’ve already written? I mean, it’s kind of ridiculous, right? And the problem is, when you don’t have a Democratic majority, you’re not going to see Congress taking up the laboring oar of trying to revive… Section 2 of the VRA, let alone all the other sections that are gone, courtesy of Shelby, etc.
Leah Mihalchick Litman
And we should kind of put this into a loop and self-reinforcing cycle. You’re right, we don’t have a Democratic majority right now. The Supreme Court just made it harder to get a Democratic majority by allowing states to draw districts that erase majority-minority districts, that allow them to draw districts that lock racial minorities out of political power. and lock themselves into power. That makes it harder to get a Democratic majority, which makes it harder to pass new voting rights legislation. And once you pass the new voting rights legislation, you’re gonna have to reinforce it by also passing legislation to address the Supreme Court. And again, the Supreme Court is participating in that cycle of making democracy harder.
Katie Phang
Which is why I’m so confounded by this, because, you know, the Supreme Court majority right now likes to… likes to fashion itself as being strict constructionists, right? That’s kind of like their jam. Like, they are… we… we are looking solely at the text of a statute. We do not imbue or inject our opinions on it. We can’t be activists about it, and that is our holy grail. We are textualists, we are strict constructionsists, however you want to construe it. That is what the conservative likes to say. They like to accuse the minority members of SCOTUS of being activists. They also like to accuse other federal judges of same. And yet, in this instance, We are seeing a Supreme Court majority in the conservative six. Pretty much ignore the plain language of the freakin’ statute!
Leah Mihalchick Litman
I mean, not only that, Justice Alito straightforwardly owns up to the fact that they are updating the legal test, i.e. the interpretation of the statute, based on subsequent developments in the world.
Katie Phang
We don’t do that when we’re the conservative majority.
Leah Mihalchick Litman
including changes in the South, including changes in political parties, including the Supreme Court’s own decisions. So, this isn’t textualism, since according to textualism, you’re supposed to interpret the words of the statute as they were enacted. It’s not originalism, which is about original public meaning. This is about the Republican justices refashioning the crown jewel of the Civil Rights Movement, because They… just aren’t big fans.
Katie Phang
Okay, and that is the hypocrisy, is it not? We have seen this majority conservative on the Supreme Court tackle other major cases With the criticism that we cannot look at intervening history between when a statute was drafted, when an amendment, Franken, was put into play. We’re supposed to ignore the development of the world. The evolution of beings in that, you know, in that intermediate… intervening time, And yet, when it fits the narrative… It’s the means to an end, is it not, then? Because that’s what Alito has done. Alito has tweaked Tweaked the standard, which, by the way, was already in place. The legal standard was already there, but he’s tweaking it and updating it to make sure that it conforms with existing… I mean, that is probably the one that I thought was really the most offensive. This idea, I think Kavanaugh advanced it too, right? This idea that so many advancements have been done in the South. That we really don’t have a need, because we heard that in the oral arguments, right? It’s like, shouldn’t there be a time ending? Shouldn’t the time on being able to make amends for discrimination have an ending to it? I could have sworn that’s what Kavanaugh asked, I think, during the oral arguments.
Leah Mihalchick Litman
Yes, it is, and this idea that there’s an expiration date or the Voting Rights Act is no longer needed made its way into this opinion. I mean, Justice Alito basically declares racism is over. He proudly quotes the line from Shelby County v. Holder, the 2013 decision dismantling the other key part of the Voting Rights Act, as saying things have changed dramatically in the South. When we have seen, in the most recent redistricting cycle, how states in the former Confederacy drew districts in ways that attempted to suppress racial minorities’ voting power. So, that is one kind of facet of this just imaginary universe and pretend play that the justices wrote into this opinion. I also wanted to underscore something you were talking about, just in this false modesty or humility that the Republican justices say they have and that Democratic appointees lack.
Katie Phang
Hmm.
Leah Mihalchick Litman
We shouldn’t forget that it was the Supreme Court itself that injected this issue, whether the Voting Rights Act complied with the Constitution, whether Congress could remedy unintentional discrimination, they’re the ones that told the parties to brief and argue that question. This case was supposed to be decided not this term, but last. The justices, exactly. punted it to this term, added an additional question, so they are actively reaching out, not just to decide what cases they decide, but also what issues are even in the cases, and how to decide them. You know, they also did this in Citizens United, another decision that was hugely consequential for our democracy and how political power and elections work in this country. So, never, never buy into this narrative that the Republican appointees are just respecting the democratic processes, adopting a modest vision of the judicial role. That is not how they act, and that is certainly not how they acted in this case.
Katie Phang
I would not use the word modesty by any stretch of the imagination with Alito, Thomas, or Kavanaugh. Not even. And I did go so far as to say that for Chief Justice John Roberts, this is a huge asterisk on his legacy in such a bad way. I mean, he has had a series of really not good asterisks nest his name, but this I think is one of the biggest ones. But the sad reality is, they’re unfazed by it. I was actually kind of surprised to see Amy Coney Barrett sign off on this one without a separate concurrence. So could you please explain to our viewers kind of the way it is? We have a majority opinion, right? And the majority opinion was drafted by Alito, and it was signed on by Gorsuch, Roberts, Thomas, Kavanaugh, and Barrett, right?
Leah Mihalchick Litman
Yep.
Katie Phang
And then, the only person who did a concurrence was Justice Thomas, with whom Gorsuch joined. But the app… and that was a really short one, by the way. That concurrence is very short. the fact that we didn’t have separate concurrences by any of the majority justices, including Barrett, does that give… can you tea-leave that a little bit for me, do you think? Because I found that to be very interesting.
Leah Mihalchick Litman
Yeah, so…
Katie Phang
It’s a consequential decision, frankly.
Leah Mihalchick Litman
Yeah, we should remember that the Chief Justice, John Roberts, he is the senior-most justice in this opinion. That meant he had the option of who to assign the opinion to. He chose Sam Alito, who was always gonna go…
Katie Phang
Message, then.
Leah Mihalchick Litman
dig, exactly. So, second is, on the chief in particular, you know, he began his career as a lawyer in the Reagan Department of Justice, pushing to limit the Voting Rights Act. pushing against the amendments to the Voting Rights Act that sought to expand its protections to encompass unintentional discrimination. He’s the author of the opinion, Shelby County v. Holder, that dismantled the other key leg of the Voting Rights Act. So, yes, he has been able to cultivate this appearance and reputation as an institutionalist. He is a hard-line ideologue on the Voting Rights Act, and always has been. So, when he probably has the opinion in the birthright citizenship case that tells the country, we Supreme Court, are protecting the Reconstruction Amendments, and we’re not allowing the president to nullify the first sentence of the 14th Amendment, remember, he gave Sam Alito free reign to nullify the 15th Amendment and Congress’s attempt to enforce Reconstruction. You know, Justice Barrett had joined an earlier opinion by Sam Alito nullifying Section 2 when it came to challenges involving laws that determine who can vote and whose votes are counted, so I think she had already somewhat showed her hand Also, in a previous Voting Rights Act case out of Alabama, she sided with Thomas and Gorsuch and Alito in adopting, like, a more extreme version, so I think their views were, in some ways, kind of more clear, leading up to this case, and they’re just not moderates on this issue by any stretch of the imagination. And the fact that none of them chose to write separately, and all of them signed on in full to just this cynical, up is down, you know, blue is orange reasoning in the Alito opinion should absolutely define, you know, the kind of justices that we understand them to be.
Katie Phang
Thank you for that gut check, Leah, because I think it’s important. I think that some of us, myself included, have maybe been exercising this fantasy that we’ve been making inroads, perhaps with some of these conservative justices, but you know what? As we’ve seen, sometimes there are just issues that are just paramount for them, that are just… you know, unshakable. And so, you know, it really is a reminder that we cannot make assumptions about these justices per se, except maybe bad ones. Leah Lipman, I’m sorry, but I’m not sorry. Sorry, not sorry. If I had to… rage, about this, and to be commiserating as I started this conversation, it is with you. I appreciate your wisdom. The ability to mine your knowledge on this is really profound. We are all beneficiaries of it here at The Contrarian. Thank you so much for spending your valuable time with us, and hopefully, we will have a subsequent conversation that would be more uplifting, but in the meantime, yeah, I appreciate you no matter what.
Leah Mihalchick Litman
Well, thank you for having me.
