Just in case anyone is wondering how the ultra-conservative Roberts Court will rule on the latest challenge to the Voting Rights Act (Alabama’s Merrill v. Milligan), this article from February 27, 2013 laid it out a long time ago.

From the article: “When he was in his late 20s, John Roberts was a foot soldier in the Reagan administration’s crusade against the Voting Rights Act. Now, as chief justice of the Supreme Court, he will help determine whether a key part of the law survives a constitutional challenge.

Memos that Roberts wrote as a lawyer in President Reagan’s Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts’ anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he’ll get another chance to gut the law. Roberts’ history suggests a crucial part of the VRA may not survive the rematch.” (source)

Racial gerrymandering will have the effect of fundamentally changing the composition of federal, state and local governments - making them even more disproportionately white and conservative than they already are.

What SCOTUS is doing in plain sight is nothing less than resetting legalized Apartheid, white nationalism and a return to Jim Crow. And John Roberts has been pivotal in systematically dismantling the VRA for the last 40 years.

[W]hen I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way. That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.” That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

Ketanji Brown Jackson quoted in an article by Ed Walker at Emptywheel. JUSTICE JACKSON’S BRILLIANT DEBUT

Ketanji Brown Jackson has been on the Supreme Court bench for a week — and she's already making waves.

Justice Jackson spoke thoughtfully about the 13th, 14th & 15th amendments during an Oct 4 hearing in the case Merrill v. Milligan. The case centers around Alabama’s redistricting plan after the 2020 census. AL’s new map creates only one district with majority-Black voters, even though roughly a quarter of the state’s population is Black.

Two groups of AL voters and civil rights organizations sued the GOP officials responsible for the map, saying it unfairly weakened the voting rights of marginalized groups.

During SCOTUS oral arguments on the case, attorneys arguing in favor of the map claimed it was designed in a ‘race-neutral’ way, which led Justice Jackson to point out that the 14th Amendment was never intended to be race-neutral.

For more U.S. news & politics, subscribe to @NowThis News

#scotus #politics #KetanjiBrownJackson #News #NowThis

By Marjorie Cohn, 

Truthout

October 17, 2022

During the Supreme Court’s oral arguments, (Oct. 4), in Merrill v. Milligan, a case that could deal a severe blow to the Voting Rights Act, Ketanji Brown Jackson powerfully rebutted right-wing attacks on voting rights by using her own “originalist” analysis of the 13th, 14th and 15th Amendments to explain why congressional district maps cannot constitutionally be drawn in a “race-neutral” way.

Liberal judges are not generally adherents to originalism – a judicial approach that insists that constitutional provisions must be interpreted based on the popular meaning they had at the time they were drafted, and that has generally been used by conservatives to justify right-wing positions such as the overturning of Roe v. Wade. But in her defense of voting rights, Jackson brilliantly turned the tables on the right by crafting her own originalist argument to defend taking race into account when drawing district maps.

“The framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way,” Jackson said, responding to Alabama Solicitor General Edmund LaCour’s claim that maps must be created in a “race-neutral” manner.

At issue in Merrill is Alabama’s GOP-created district map, which includes only one Black-majority district out of seven districts, despite the fact that Black people comprise 27 percent of the population. LaCour was in effect arguing that a successful challenge to a district map requires proof of discriminatory intent. But Congress has clearly said that a map violates the Voting Rights Act if its effects are discriminatory, regardless of the intent of the mapmakers.

The state of Alabama maintains that the consideration of race in drawing maps violates the 14th Amendment’s equal protection clause, claiming that it discriminates against white people.

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Jackson said, schooling LaCour on the intent of the framers of the 14th Amendment.

Jackson noted “they were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the reconstruction period, were actually brought equal to everyone else in the society.” She said that “the entire point of the amendment was to secure rights of the freed former slaves.”

The 13th Amendment abolished slavery. The 14th Amendment prohibits states from denying equal protection of the law. And the 15th Amendment forbids abridgment of the right to vote on account of “race, color, or previous condition of servitude.”

Citing the report of the Joint Committee on Reconstruction that drafted the 14th Amendment, Jackson quoted Republican Rep. Thaddeus Stevens of Pennsylvania. When he introduced the amendment, Stevens said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.” (Stevens could have been talking about Alabama.)

“That’s not a race-neutral or race-blind idea in terms of the remedy,” Jackson observed, noting that the drafters of the Civil Rights Act of 1866 “specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens.”

Since the framers were concerned “that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play,” Jackson said. It provided “a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.” That, Jackson told LaCour, “was doing what the Section 2 is doing here.”

Section 2 of the Voting Rights Act of 1965 prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race,” which occurs when minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section 2 was enacted to enforce the 15th Amendment.

In 1980, the Supreme Court ruled in City of Mobile v. Bolden that in order to obtain relief under Section 2 of the Voting Rights Act, the plaintiff had to prove that the abridgement of voting rights was intentionally discriminatory.

Two years later, however, Congress amended Section 2 to specify that a voting procedure which has the effect of abridging the right to vote due to race, color, language or minority status is illegal, regardless of whether the plaintiff could prove discriminatory intent. The discriminatory effect can be proved by considering the “totality of the circumstances.”

In January, a three judge-panel of the federal district court (including two Trump-appointees) concluded that Alabama’s map likely violates Section 2 of the Voting Rights Act, and ordered the state to create a second Black majority or plurality district.

But a 5-4 conservative majority of the Supreme Court halted the district court ruling and allowed the discriminatory map to be used in the 2022 midterm elections. The high court heard oral arguments in Merrill on October 4.

Even the right-wingers on the court appeared hesitant to adopt LaCour’s invitation to require discriminatory intent, which Congress has clearly rejected. But don’t be surprised if they find a narrower ground on which to uphold Alabama’s racist map.

They might rule that the new majority-Black district could not be “reasonably compact” to satisfy the test set forth in the Supreme Court’s 1986 decision in Thornburg v. Gingles. It says that in order to successfully challenge redistricting maps that illegally dilute the voting power of a minority group, the plaintiff must show that the group is sufficiently large and compact to constitute a majority.

Brett Kavanaugh cited Alabama’s argument that the “district is too sprawling to be reasonably compact or reasonably configured.” Samuel Alito characterized that argument as “basic” and “least far-reaching.”

Such a ruling would present significant hurdles to future challenges to redistricting maps which claim that they dilute the collective voting power of Black people.

No Doppelgänger for Jackson

Who is Justice Jackson going to be closest with on the Supreme Court in terms of votes and opinions? The verdict is still out but here are some thoughts about her distinct position on the left of the Court.

Justice Jackson is the first justice in recent times to enter a Court with a clear six justice bloc in the majority. Unfortunately (for her) she is in the minority of this grouping.  In the first week of oral arguments this term Jackson more or less solidified her position on the left of the Court with her questions concerning Alabama’s redistricting plan in Merrill v. Milligan (many of her…

View On WordPress

What we're in for with the next SCOTUS term

Some years ago, I remarked that “[w]e’re all textualists now.” It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards. — Elena Kagan, dissenting on West Virginia v. EPA (2022)

Now that the U.S. Supreme Court's radical right wing can run roughshod over the country, here's some of what's on the docket for the term starting in October:

303 Creative LLC v. Elenis: a case about whether anti-discrimination laws protecting LGBTQ equality violate the free speech and free exercise of religion clauses of the First Amendment; may exempt certain businesses from those laws because of the owner’s religious beliefs.

Haaland v. Brackeen: a case that may invalidate portions of the Indian Child Welfare Act of 1978, which (among other things) establishes minimum standards for the removal of Native American children from their families and a preference that Native children who are removed from their families be placed with extended family members or in Native foster homes.

Merrill v. Milligan: a case about a racially discriminatory congressional map that dilutes Black votes; may further dismantle the Voting Rights Act of 1965.

Moore v. Harper: another case about a congressional map that has the potential to upend over 200 years of election law by eliminating almost all oversight of federal elections by state courts.

Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College: two cases about diversity-based affirmative action programs that may ban colleges and universities from using race as a factor in admissions.

P.S. For my fandom friends, here's one other case that's less important for our democracy but is relevant for fandom:

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith: a case about what it means for a work of art to be “transformative” for purposes of fair use under the Copyright Act.

Write-up from Kottke.org:

This short video from Vox takes a look at the recent Supreme Court decision that struck down a gerrymandered congressional map in Alabama.

In 2013, a divided Supreme Court gutted one of the major pillars of the 1965 Voting Rights Act. In the 10 years since then, the court has moved even farther to the right. So when the Voting Rights Act came before the Supreme Court again in 2022, it didn't look good for the law. But then something completely unexpected happened: in a 5-4 decision, two of the conservative justices voted with the 3 liberal justices to preserve the Voting Rights Act. And the effects could be huge. At stake in the case was the way that Alabama divides up its Congressional districts. Alabama has seven districts, one of which is what's called a "majority-minority district" in which Black Americans are the majority of the population. In 2022, a group of Black voters sued the state, saying that under the law, Alabama should actually have two majority-minority districts. And the Supreme Court agreed.

The decision could affect recently redrawn district maps in other states, which could in turn affect the balance of power in the House of Representatives. You can read more about these gerrymandering cases at the Brennan Center for Justice: Allen v. Milligan: Gerrymandering at the Supreme Court (Formerly Merrill v. Milligan) and Redistricting Litigation Roundup.

roberts and kavanaugh joining the court's liberals in the VRA section 2 case gives me a perhaps unhealthy hope about the result of haaland v brackeen. gorsuch is already going to join the liberals in that case. roberts put his foot down about defending stare decisis and federal law in merrill v milligan and kavanaugh would hate to come off as anti-indigenous rights, because his nepotistic-career and washington-elite lifestyle would continue to suffer like it has after dobbs. so. i have an unhealthy hope that ICWA will stand <3

The court is already set to deal with even more hugely consequential cases when it convenes in the fall.

One of those is Moore v Harper, a case from North Carolina that seeks to block state courts from being able to weigh in on disputes over rules for federal elections. The case asks the justices to approve the so-called independent state legislature Theory (ISL) – an idea that argues the US constitution gives state legislatures a power to set voting rules for federal office that cannot be checked by state courts.

A decision endorsing that idea would have profound implications for US elections. It would give lawmakers virtually unfettered authority to gerrymander district lines to their advantage. Such a decision would be a huge win for Republicans, who have control of far more legislatures than do Democrats. Republicans have used their redistricting power to entrench those advantages for another decade.

The theory has no basis in the constitution’s text and history and would go against the idea of separation of power at the heart of US government.

“The court would look so bad if it embraced ISL after kind of having thrown Roe under the bus for being made up,” said Vikram Amar, dean of the University of Illinois college of law who has studied the theory. “ISL is as made up as anything I know out there in constitutional law.”

There’s also some concern that embracing the theory could pave the way for lawmakers in certain states to override the popular vote and appoint their own set of presidential electors in a future election. It was an idea at the heart of Donald Trump’s efforts to overturn the 2020 election. J Michael Luttig, a well-respected conservative judge who has spoken out against Trump’s efforts to overturn the election, has called for the supreme court to rule against the theory ahead of 2024.

In October, the court will also hear Merrill v Milligan, a case that could deal a significant blow to what is left of the Voting Rights Act, the landmark 1965 law designed to prevent discrimination against minority voters. A portion of the law, section 2, makes it illegal to draw districts that prevent minority voters from electing the candidate of their choice if certain conditions are met.

In addition to the Indian Child Welfare Act cases, you've also got:

Sackett v. Environmental Protection Agency, No. 21-454 [Arg: 10.3.2022]

Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act, 33 U.S.C. § 1362(7).

Merrill v. Milligan, No. 21-1086 [Arg: 10.4.2022]

Issue(s): Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.

Reed v. Goertz, No. 21-442 [Arg: 10.11.2022]

Issue(s): Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Students for Fair Admissions v. University of North Carolina, No. 21-707

Issue(s): (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199

Issue(s): (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

Axon Enterprise v. Federal Trade Commission, No. 21-86

Issue(s): Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the commission’s cease-and-desist orders.

303 Creative LLC v. Elenis, No. 21-476

Issue(s): Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Jones v. Hendrix, No. 21-857

Issue(s): Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

How A Supreme Court justice's Paragraph Put The Voting Rights Act In More Danger

The roots of the next potential U.S. Supreme Court showdown that could further weaken the Voting Rights Act's protections against racial discrimination can be traced to a handful of sentences by Justice Neil Gorsuch.

In the summer of 2021, Gorsuch — the first Supreme Court appointee by former President Donald Trump — tacked a single-paragraph concurring opinion onto a major court ruling to "flag one thing."

The ruling was for a lawsuit about Section 2 of the Voting Rights Act.

And the "thing" Gorsuch wanted to flag was a question he said no one in the case had raised before the court: Who has the right to sue to try to enforce that key section of the landmark law?

For decades, private individuals and groups, who did not represent the federal government, have filed the majority of Section 2 lawsuits that have stopped state and local governments from minimizing the political power of people of color through the redrawing of voting maps and other steps in the elections process.

But that longstanding practice may be coming to an end.

Gorsuch's paragraph of a concurring opinion, which was joined by Justice Clarence Thomas, planted the seeds for an unusual argument that has emerged in an Arkansas redistricting case — that private individuals are not allowed to bring Section 2 lawsuits. And the case may soon find its way before the country's highest court.

After the court's 2013 decision in Shelby County v. Holder, which gutted another key section of the act, Section 2 remains as one of the last legs of the civil rights-era law. Many court watchers are holding their breath to see what's left of Section 2 after the court is expected to rule on another redistricting case — Merrill v. Milligan — by the end of its current term in June. -(source: npr)

Stay tuned…

DNA America

“It’s what we know, not what you want us to believe.”

#dna #dnaamerica #news #politics

By Amelia Thomson-DeVeaux

FiveThirtyEight

OCT. 3, 2022

The beginning of the end for the Voting Rights Act started more than 30 years ago. On Oct. 4, the end of the end is likely to begin.

This term, the Supreme Court is hearing a case about whether Alabama’s newly drawn congressional maps violate Section 2 of the Voting Rights Act of 1965, which prohibits voting practices or procedures that discriminate on the basis of race. In a seven-district state, the new maps included only one majority-Black district even though the state has a population that is more than one-quarter Black. The groups challenging the maps say that because it would be relatively easy to draw a map with two majority-Black districts, the state is legally obligated to do so. But Alabama Republicans countered by arguing they don’t have a requirement to use the plaintiffs’ maps, because creating a second majority-Black district would violate other race-neutral criteria used in redistricting.

The justices’ ruling could have implications that go far beyond Alabama, potentially neutering what remains of the Voting Rights Act — a seminal piece of legislation that is ostensibly permanent yet constantly imperiled. 

The current Supreme Court justices, under Chief Justice John Roberts, might strike the final blow against the Voting Rights Act, whether it’s in this case or a future one. But they didn’t strike the first blow. According to a FiveThirtyEight analysis of Supreme Court cases involving the Voting Rights Act, most of the first 20 years of decisions interpreting the law went in a liberal direction.1 That changed in the late 1980s, when more right-leaning justices joined the bench and, not coincidentally, more and more of decisions overall started to go in a conservative direction. Of the seven Voting Rights Act cases that the court has heard in the Roberts era, only one had a liberal outcome. “Starting in the 1990s as the court’s composition changed, the court has been cutting back or refusing to expand Section 2 in virtually every case it’s had,” said Richard H. Pildes, a constitutional law professor at New York University.

Read more.

Alabama'nın oy hakları davasındaki argümanları beyazların üstünlüğüne dayanıyor

Alabama’nın oy hakları davasındaki argümanları beyazların üstünlüğüne dayanıyor

Salı günü Alabama, uzun zamandır doğru olduğunu bildiğimiz şeyi doğruladı: Oradaki milletvekilleri, renk topluluklarının haklarını reddetmek için ellerinden gelen her şeyi yapmaya hazırlar. Merrill v. Milligan davasında Yüksek Mahkeme önündeki sözlü tartışmalar sırasında, Alabama, beyaz seçmenleri renkli seçmenlere tercih eden haritalar çizme konusunda onlara özgür dizginleri verecek bir hareket…

View On WordPress

CJ court watch 6oct22

Merrill v. Milligan, 21-1086 is a redistricting case.  Merrill is the Alabama state Attorney General.  Justice Jackson made an interesting point at page 58 of the transcript of oral argument.

So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. 

The legislator who introduced that amendment said that "unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen."***

I am so, so glad for Justice Barrett's clarification because I had the same thought about what you were arguing, and I'm glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the -- the first step has to be race-neutral. And -- and what I guess I'm a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there's a Fourteenth Amendment problem?

And let me just clarify what I mean by that. I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way. That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in -- during the reconstructive -- reconstruction period were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that "unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen." That's not -- that's not a race-neutral or race-blind idea in terms of the remedy.

And -- and even more than that, I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That's the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens.

So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally. And, importantly, when there was a concern that the Civil Rights Act wouldn't have a constitutional foundation, that's when the Fourteenth Amendment came into play.

It was drafted to give a foundational -- a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens. So with that as the framing and the background, I'm trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that's remedied, right? It's a race-conscious effort, as you have indicated. I'm trying to understand why that violates the Fourteenth Amendment, given the history and -- and background of the Fourteenth Amendment?

Justice Kentanji Brown Jackson, Merrill v Milligan Oral Arguments