Mark Joseph Stern, who reports on courts and the law for Slate, says a lot of headlines regarding the Supreme Court’s most recent term totally missed the mark. His own headline with Slate’s Dahlia Lithwick read: “The Supreme Court’s Conservatives Have Laid the Groundwork for the Devastation to Come.” You may recall, when President Donald Trump was rushing Amy Coney Barrett onto the bench last year and a conservative supermajority seemed inevitable, liberal activists got worried and started seriously talking about the need to fix the judiciary, perhaps by adding more justices. All that talk has now died down, but the prediction that there were only two paths that lay ahead—either a packed court or a democratic crisis—has been vindicated, according to Sten: “Our prediction was correct. This was a catastrophe.” So, even though this term seemed to be filled with so much supposed agreement among the justices, you have to read between the lines to see how relationships on the Supreme Court are fracturing—and what the consequences will be for the rest of us. It’s easy to get lost when the Supreme Court hands down dozens of individual rulings each spring—but if you put each decision in a wider context, year over year, you can see patterns emerge. On Wednesday’s episode of What Next, I spoke with Stern about these very patterns, the unwillingness to call this Supreme Court what it is, and the consequences to come. Our conversation has been edited and condensed for clarity.
Last week, an Associated Press headline read, “Unusually Agreeable Justices End Term With Conservative Wins.” What do you think about a headline like that?
Mark Joseph Stern: Wrong and bad. Very bad. You would have to be so Pollyanna-ish and blind to the internal dynamics of the court to believe that this term reflected any kind of actual agreement ability across the justices. What we saw instead were bitter compromises and a couple of merciful punts that will not, in the end, I fear, forestall the broader damage for much longer.
You’re making it sound more like a hostage situation for the liberal justices.
Yes, absolutely. That is what we’ve got going on here.
Let’s look at Fulton v. Philadelphia. In this case, the justices mandated that the city of Philadelphia had to continue working with Catholic Social Services even though the group openly discriminates against gay couples who want to foster children Every liberal justice signed onto this decision.
I really resist even calling this “unanimous” because I have no doubt—I would bet every penny that I own—that if the liberal justices had two more votes to side with Philadelphia against the agency, they would have.
Why do you say that?
I don’t have any exclusive insight, but I think they are in damage control mode. They are trying to sign onto the least bad option in a case like this. But I do think that based on their questions during oral arguments, based on their past writings and their past votes, the liberal justices understand that this is a real affront to the equal dignity of same-sex couples.
Let’s now look at Brnovich v. DNC. In this case, Democrats sued the state of Arizona for restricting the way people vote. The state had put a stop to so-called ballot harvesting, which lets community organizers collect ballots. Arizona also said that if residents cast their ballots in the wrong precinct, their votes would be thrown out. Both of these rules were more likely to disenfranchise people of color. The thing is, the Supreme Court has a history with these sorts of rules. A few years back, the justices decided to limit the way the Voting Rights Act protects people. So this year’s ruling was a bit of a rematch.
The Supreme Court gutted part of the act in 2013, through Shelby County v. Holder. But the Voting Rights Act was still there, and it had this thing called a results test. What this law says is that the VRA doesn’t just ban voting restrictions that are intentionally racist, because Congress understood that legislators don’t usually go on to the statehouse floor and say: “I hate Black people and don’t want them to vote. That’s why I’m passing this law.” The Voting Rights Act also prohibits restrictions that result in unequal opportunity for racial minorities to vote, that have a disproportionate impact on racial minorities’ ability to cast a ballot even if there’s not overt proof of racist intent. The 9th U.S. Circuit Court of Appeals said, These Arizona laws fall heavily on the shoulders of racial minorities. They disproportionately affect these individuals in a way that they do not affect most white people, and so they violate the Voting Rights Act results test. And by a 6–3 vote, the U.S. Supreme Court, rather predictably, reversed that decision and upheld both of Arizona’s laws.
You want to talk about the reasoning a little bit?
So Justice Elena Kagan, in her fantastic dissent in Brnovich, called Justice Samuel Alito’s majority opinion a “law-free zone,” and I think that really hits the nail on the head. What’s remarkable about the majority opinion in Brnovich is how totally disconnected it is from the text of the Voting Rights Act. And remember, this conservative court is supposed to be a textualist court: a court that just looks at the plain meaning of the words that the people’s representatives passed. But instead, Alito basically said, We don’t really believe Congress could have possibly intended to prohibit voting restrictions that have a disproportionate impact on racial minorities.
… even though that’s what Congress said.
And Alito says, instead, We’re going to create these new rules that are totally divorced from the law itself. In order for a law to be illegal under the Voting Rights Act, a court has to go through these factors first and find that they don’t apply. One rule that Alito comes up with is that if there are other opportunities to vote—if it’s generally pretty easy for the average person to vote in a state—one specific restriction on one specific method of voting probably won’t be illegal, even if that one restriction targets the most popular method of voting among racial minorities. Another rule that Alito concocts is that laws that were in place in 1982, when Congress passed the results test, are sort of the baseline for voting rights. So if a state legislature passes a law that was common in 1982, then it’s probably not illegal today—which is shocking, because almost every single state severely restricted both absentee voting and early voting in 1982. Alito has essentially opened the door to unlimited cuts among states to early voting and absentee voting. And there’s almost no way to challenge those laws anymore because Alito says 1982 is the baseline. Never mind that Congress specifically passed this law because it felt that many voting restrictions in place in 1982 were unlawful.
If Congress passed as a law—as, say an amendment to the Voting Rights Act—what the Supreme Court did in Brnovich, there would be massive outcry, rallies the size of the Women’s March in the streets, protests and millions of letters flooding into Congress, huge campaigns to call your representatives. There would be a ton of news segments about it. It would dominate late night for weeks. It would be understood as a direct assault on equal access to the ballot in the United States, as a huge blow to voting rights the likes of which we have not seen from Congress in decades since the Jim Crow era. But because the Supreme Court did it, and because it was wrapped in this kind of garbled legalese, it got one news cycle, it got 24 hours, and then people moved on to their July 4 weekend. I think that is doubly catastrophic because it’s not just a terrible policy outcome—it’s also not the kind of earth-shaking news that people internalize and understand. Instead, it passes by. It floats away like so many other Supreme Court decisions, like tears in rain, and we get a flood of end-of-term summaries that say, “Everything wasn’t that bad.” And people forget until Arizona flips back to red because tens of thousands of Native and Hispanic people weren’t allowed to vote.
With Brnovich, you can see an arc. In 2013, the Supreme Court hobbles the Voting Rights Act in one way. Eight years later, the court hobbles the law antoher way, in a steady conservative progression. And then there’s Americans for Prosperity v. Bonta, a dark money case that came out the final day of the term. Chief Justice John Roberts wrote the majority opinion here.
This case involves a California law that requires charities—including political charities like Americans for Prosperity, a Koch-run organization—to disclose their high-dollar donors to the state attorney general because 25 percent of charities are located in California. Charitable fraud is a real problem. One of the few ways to sniff it out is for state law enforcement to reach out to donors and make sure charities are doing what they promised they would do. Here, the Supreme Court said that this law is unconstitutional on its face, that it violates the First Amendment right to freedom of association, that it unconstitutionally chills freedom of speech, and that basically there’s no way it could be applied in a constitutional manner, so it has to be struck down in its entirety.
My understanding in this case is that somehow, information that was supposed to be kept confidential leaked out, so you could figure out who contributed to what. Was the idea that this made people vulnerable, that folks knew who is giving to these Koch-affiliated organizations and so therefore they’re being targeted in some way?
I think Roberts would have reached the same conclusion even if the state of California had an airtight security protocol here and not a single donor disclosure had leaked. But yes, that was part of the court’s reasoning—part of Roberts’ reasoning—that, unfortunately, the state attorney general did not have great web security when this law first took effect several years back, and some of these disclosures did leak to the public. I will note that the plaintiffs actually hired an expert hacker to find a way around California security protocols to obtain this information—and then called that a leak, so it’s not exactly a totally organic leak. But leaving that aside, the conservative justices have a deep, deep concern for these donors, for these California billionaires who are turning over hundreds of thousands of dollars to groups like Americans for Prosperity and think that they will be so harassed, that they will be so targeted if their names are revealed, that their feelings will be so hurt. So the courts cannot possibly uphold this law because it would be too chilling to these sweet, benevolent zillionaires who only want to purchase elections and are asking for the basic constitutional right not to have their feelings hurt.
This decision is an important change. Because when the Supreme Court voted to allow corporations and other outside groups to freely spend money on politics, as they did in Citizens United a decade ago, disclosure was an important element of their decision. In fact, the justices agreed that disclosure was an essential tool. Now, disclosure is presumed to be unconstitutional.
I want to just pause for a second and think about these two cases—the voting rights case and the donor disclosure case—as one, and put them in a broader context, because there’s trouble in seeing each individual case but then never really zooming out to see the forest for the trees. In these cases, you have the court picking away slowly but surely at the rules, brick by brick. But then when you look at all of these cases, you see how there’s actually a methodical thing happening here, which you might not see if you just look case by case.
Absolutely right. My colleague Dahlia Lithwick calls this John Roberts’ two-step. We’ve seen it many times before. And in fact, when the Supreme Court gutted Section 5 of the Voting Rights Act in 2013, that was the second step—the first step had come a few years earlier in a case most people did not pay a ton of attention to, where John Roberts said, We’re upholding the Voting Rights Act and Section 5, but we’re very concerned about it, we’re not totally sure if it’s constitutional, so Congress might want to take a look at this. Then a few years later, when he dismantles that, he can say, well, we warned you. And there’s another Roberts two-step in action in Shelby County. He says, Section 2 is still there, we’ve still got this permanent ban on racial discrimination in voting. And then in Brnovich, he signs onto an opinion that says, We don’t really like what Section 2 says, so we’re going to water it down a meaningless standard that’s going to make it near-impossible to block voter suppression laws in court. Roberts gets a lot of credit for compromise opinions, and not as many people pay attention to what comes a few years late. You can’t just take a look at the last opportunity to come down at the end of the term and say it’s not as bad as it could be. You have to look at how John Roberts is selectively pulling out the Jenga blocks and getting ready for the tower to crumble.
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