Samuel Alito is the most transparently partisan operative on the United States Supreme Court (with Clarence Thomas a close second). And Alito is drenched in the bugbears and argot of MAGA and the Christian Right. (He might point to Mrs. Alito, but c'mon, he has a thorough grasp of the symbolism of the flags flying at his homes.) For most of us, there's much on FNC and OANN that we can't understand, because we're not acquainted with a range of right wing tropes that might as well be in code. While there is a slew of webpages where true believers connect, they represent a radical subculture that is lost on most Americans.
But it's not possible to believe that the political significance flying an American flag upside down or hoisting that Appeal to Heaven flag -- both prominently displayed by January 6 rioters -- was unknown by Mr. and Mrs. Alito. The family -- just like Clarence and Ginni Thomas -- are immersed in the culture of the anti-democratic MAGA world. And, in post-2016 America, the MAGA world is the province of the Republican Party.
The flag flying is a way to troll Americans who reject Trump and the authoritarian GOP. Much like the pilgrimage to a New York courtroom of Republican elected officials and wannabes who put on their red ties, stand before the cameras, parrot Trump's attacks on the justice system, the judge and prosecutor, and the Biden administration (in tandem with Trump) and then trash the witnesses and - yes - even the judge's daughter, because Trump can't do that without violating his gag order, these flag wavers are smiting the libs, doing a MAGA version of virtue signaling to their comrades, and of course demonstrating obeisance to their vengeful leader who is watching.
But more significant than these cultish, sycophantic displays, the flag flying, and even of the grasping corruption of Clarence Thomas, is what the current Republican majority on the Supreme Court is doing to our democratic institutions. This week's decision, blessing the Republican gerrymander in South Carolina -- a decision joined by all Republican appointees, and opposed by the Democratic appointed justices -- is a clear win for the Republican Party.
The Civil War Amendments
Republican justices can generally be counted on to oppose the Civil War amendments, and especially the Fourteenth Amendment, which granted citizenship to everyone born or naturalized in the United States, including former slaves. Further, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
For generations after its enactment, however, the amendment had no practical force. The ugly, undemocratic regime of Jim Crow enforced the ruthless suppression of access to the ballot box by black folks -- to the benefit of the Democratic Party, which relied, before passage of the Voting Rights Act of 1965, on the Solid South to win elections. But the parties have switched sides. Today it's the Republican Party that caters to white voters' racial anxieties and fears, relying on legislation to diminish black voting strength to maintain political power.
Voting rights and equal representation are partisan issues in American politics. Voter suppression and gerrymandering to enhance their prospects of winning elections have become a strategic imperative of Republicans. Democrats have pushed back, and one of the most effective weapons has been the Voting Rights Act, legislation activating the Fourteenth Amendment, to ensure free and fair elections and fairly apportioned legislative districts.
John Roberts' Crusade to eviscerate the Voting Rights Act
This week's decision should be placed in context. While Chief Justice John Roberts has insisted that courts just call balls and strikes, the record of the Roberts Court reveals something altogether different. From the days he served in the Reagan administration, Roberts has made a career out of opposing the Voting Rights Act. In Shelby County v. Holder (2013), Roberts' 5-4 majority decision eliminated the preclearance provisions of the act. There was an immediate rush among Republican state legislatures to enact voting restrictions to dampen turnout of Democratic constituencies. In Rucho v. Common Cause (2019), Roberts' 5-4 majority decision barred federal courts from providing remedies for partisan gerrymandering (including extreme gerrymandering), which Republicans (far more than Democrats) have favored. (See this previous post for more details about Roberts' crusade and the pushback from Democratic-appointed justices.)
In this week's 6-3 decision (Alexander v. NAACP), written by Alito, the court flipped the standard for adjudicating cases where racial discrimination appears to be in play. The decision decreed that the court should grant state legislatures the "presumption of legislative good faith." In the words of election maven Rick Haven, "It's a huge thumb on the scale ...," which boosts Republicans' chances of holding onto their slender Congressional majority in 2024.
Justice Elena Kagan's dissent notes that the majority has stacked the deck against challengers to gerrymandered districts. She is outraged at the sophistry:
When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be “accus[ed]” of “offensive and demeaning” conduct.
She concludes:
And so this “odious” practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue. In the electoral sphere especially, where “ugly patterns of pervasive racial discrimination” have so long governed, we should demand better—of ourselves, of our political representatives, and most of all of this Court.
As long as this majority is in place, there will be no remedy for gerrymandering. Republican legislators in states where they are in control have been given free reign, knowing that the Republican-dominated Supreme Court has their backs. In this case, as in previous cases, the Republican justices have rejected precedent, made up new rules for deciding cases, and advanced the agenda of the contemporary Republican Party.
Unfortunately, there's nothing new here. This court is ruled by a partisan Republican majority.