Supreme Court (US)

Subterms

    More stories

    • 113 Shares169 Views

      in Elections

      Overturning Roe Changed Everything. Overturning Affirmative Action Did Not.

      by

      What do the strikingly different public responses to two recent Supreme Court rulings, one on abortion, the other on affirmative action, suggest about the future prospects for the liberal agenda?Last year’s Dobbs decision — overturning the longstanding precedent set by Roe v. Wade in 1973 — angered both moderate and liberal voters, providing crucial momentum for Democratic candidates in the 2022 midterm elections, as well as in elections earlier this month. The hostile reaction to Dobbs appears certain to be a key factor in 2024.Since Dobbs, there have been seven abortion referendums, including in red states like Ohio, Kansas, Kentucky and Montana. Abortion rights won every time.In contrast, the Supreme Court decision in June that ended race-based affirmative action in college admissions provoked a more modest outcry, and it played little, if any, role on Election Day 2023. As public interest fades, so too do the headlines and media attention generally.There have been no referendums on affirmative action since the June decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Six states held referendums on affirmative action before that ruling was issued, and five voted to prohibit it, including Michigan, Washington and California (twice). Colorado, the lone exception, voted in favor of affirmative action in 2008.Do the dissimilar responses to the court decisions ending two key components of the liberal agenda, as it was originally conceived in the 1960s and 1970s, suggest that one of them — the granting of preferences to minorities in order to level differences in admissions outcomes — has run its course?On the surface, the answer to that question is straightforward: Majorities of American voters support racial equality as a goal, but they oppose targets or quotas that grant preferential treatment to any specific group.In an email, Neil Malhotra, a political economist at Stanford — one of the scholars who, on an ongoing basis, oversees polling on Supreme Court decisions for The New York Times — pointed out that “race-based affirmative action is extremely unpopular. Sixty-nine percent of the public agreed with the court’s decision in Students for Fair Admissions v. Harvard, including 58 percent of Democrats.”On the other hand, Malhotra noted, “the majority of Americans did not want Roe overturned.”The July 1-5 Economist/YouGov poll posed questions that go directly to the question of affirmative action in higher education.“Do you think colleges should or should not be allowed to consider an applicant’s race, among other factors, when making decisions on admissions?”The answer: 25 percent said they should allow racial preferences; 64 percent said they should not.“Do you approve or disapprove of the Supreme Court’s decision on affirmative action, which ruled that colleges are not allowed to consider an applicant’s race when making decisions on admissions?”Fifty-nine percent approved of the decision, including 46 percent who strongly approved. Twenty-seven percent disapproved, including 18 percent who strongly disapproved.I asked William Galston, a senior fellow at Brookings, about the significance of the differing reactions to the abortion and affirmative action decisions, and he referred me to his July 2023 essay, “A Surprisingly Muted Reaction to the Supreme Court’s Decision on Affirmative Action”:In a marked contrast to last year’s Dobbs decision by the Supreme Court overturning Roe v. Wade, the response to its recent decision prohibiting the use of race as a factor in college admissions has been remarkably muted. The overall reason is clear: while voters wanted to preserve access to abortion by a margin of roughly 20 percentage points, they were willing by the same margin to accept the end of affirmative action.“To the surprise of many observers,” Galston writes, citing poll data, Black Americans “supported the court by 44 percent to 36 percent.”Key groups of swing voters also backed the court’s decision by wide margins, Galston goes on to say: “Moderates by 56 percent to 23 percent, independents by 57 percent to 24 percent, and suburban voters, a key battleground in contemporary elections, by 59 percent to 30 percent.”Sanford V. Levinson, a law professor at the University of Texas-Austin, wrote me by email thatThere has always been a certain ambivalence on the part of many liberals regarding the actual implementation of affirmative action. I thought that it would ultimately be done in by the sheer collapse of the categories such as “white” or “Black,” and the impossibility of clearly defining who counts as “Hispanic” or “Asian.”In contrast, Levinson continued,Abortion has become more truly polarized as an issue, especially as the “pro-life” contingent has revealed its strong desire to ban all abortions. Moreover, it’s become immediately and obviously clear that the consequences of Dobbs are absolutely horrendous for many women in Texas, say, and that the “pro-life” contingent simply doesn’t seem to care about these consequences for actual people.I asked Richard Pildes, a professor of constitutional law at N.Y.U., about the divergent responses to the two decisions, and he emailed his reply:There are two reasons the public and political reaction differs so dramatically between the two decisions. The first is that in public opinion polling, affirmative action has always had significantly less than majority support.Pildes pointed out thatin perhaps the most liberal state in the country, California, 57 percent of voters in 2020 voted to keep in place the state’s ban on affirmative action, even as Biden won the state overwhelmingly. Popular opinion on abortion runs the other way: a majority of the country supports the basic right of access to abortion, and we see strong majorities even in red states voting to support that right, as in recent votes in Ohio and Kansas.Pildes’s second reason involves the advance preparation of the public for the decisions. In the case of affirmative action in college admissions,It was widely expected the Supreme Court was going to ban it. That outcome did not come as a surprise; it had long been discounted into the assumptions of those who follow these issues closely.In the case of the Dobbs, according to Pildes, “there was far more uncertainty in advance, even though the expectation was that the court would uphold Mississippi’s ban on most abortions after 15 weeks.”While the court majority might have decided the case “on narrow grounds, without overruling Roe,” Pildes wrote, it took “the far more extreme path of overruling Roe altogether. That came as a stunning shock to many people and it was the first time the court had taken away a personal constitutional right.”Nicholas Wu reported last month in Politico (in “Why Dems Aren’t Campaigning on Affirmative Action”) that some of the strongest proponents of affirmative action in the House do not see campaigning against the court decision as an effective strategy.Representative Mark Takano, a California Democrat who believes affirmative action helped get him into Harvard, told Wu, “I don’t see it as a rallying point for Democrats.”Representative Bobby Scott, a Virginia Democrat and the ranking Democrat on the Committee on Education and Workforce, told Wu, “This is going to cause some heartburn, but we need to campaign on the fact that we are opening opportunities to everybody, and we’ll do everything we can to maintain opportunities.”“It’s difficult,” Scott added, “to bring back a strategy that the Supreme Court has directly ruled as unconstitutional.”Nicholas Dias, a doctoral candidate in political science at the University of Pennsylvania, responded by email to my inquiry by noting that his “read of the existing data is that Americans care more about equality of opportunity than equality of outcome.”Dias conducted a study asking Americans how they prioritize three social goals in setting policies concerning wealth: “ensuring wealth is determined by effort (i.e., deservingness); providing for basic needs (sufficiency); and ensuring wealth equality.”He found that Republicans overwhelmingly give top priority to ensuring that wealth is determined by effort, at 70.5 percent, while Democrats give top priority, at 51.2 percent, to ensuring that everyone’s basic needs are met.Dias noted that very few Democrats, Republicans or independents gave wealth equality top priority.Dias sent me a 2021 paper, “Desert and Redistribution: Justice as a Remedy for, and Cause of, Economic Inequality,” in which Jacob S. Bower-Bir, a political scientist affiliated with Indiana University, makes the case that:People tolerate grave inequalities if they think those inequalities are deserved. Indeed, if outcomes appear deserved, altering them constitutes an unjust act. Moreover, people who assign a significant role to personal responsibility in their definitions of economic desert oppose large-scale redistribution policies because government intervention makes it harder for people to (by their definition) deserve their economic station.In short, Bower-Bir argues, “people must perceive inequality as undeserved to motivate a policy response, and the means of combating inequality must not undermine desert.”In that context, Dias wrote in his email, it would be inaccurate to say thatpolicies designed to benefit minority constituencies have run their course. There’s plenty of evidence that members of these constituencies lack economic opportunities or cannot meet their needs. However, I think many Americans need to be convinced of that.In a further elaboration of the affirmative action debate, three sociologists, Leslie McCall, Derek Burk and Marie Laperrière, and Jennifer Richeson, a psychologist at Yale, discuss public perceptions of inequality in their 2017 paper “Exposure to Rising Inequality Shapes Americans’ Opportunity Beliefs and Policy Support”:Research across the social sciences repeatedly concludes that Americans are largely unconcerned about it. Considerable research has documented, for instance, the important role of psychological processes, such as system justification and American dream ideology, in engendering Americans’ relative insensitivity to economic inequality.Challenging that research, the four scholars contend that when “American adults were exposed to information about rising economic inequality in the United States,” they demonstrated increased “skepticism regarding the opportunity structure in society. Exposure to rising economic inequality reliably increased beliefs about the importance of structural factors in getting ahead.” Receiving information on inequality “also increased support for government redistribution, as well as for business actors (i.e., major companies) to enhance economic opportunities in the labor market.”The intricacies don’t end there.In their April 2017 paper, “Why People Prefer Unequal Societies,” three professors of psychology, Christina Starmans, Mark Sheskin and Paul Bloom, write thatThere is immense concern about economic inequality, both among the scholarly community and in the general public, and many insist that equality is an important social goal. However, when people are asked about the ideal distribution of wealth in their country, they actually prefer unequal societies.How can these two seemingly contradictory findings be resolved?The authors’ answer:These two phenomena can be reconciled by noticing that, despite appearances to the contrary, there is no evidence that people are bothered by economic inequality itself. Rather, they are bothered by something that is often confounded with inequality: economic unfairness.Human beings, Starmans, Sheskin and Bloom write, “naturally favor fair distributions, not equal ones, and that when fairness and equality clash, people prefer fair inequality over unfair equality.”My interest in the subdued political response to the court’s affirmative action decision was prompted by a 2021 book, “The Dynamics of Public Opinion,” by four political scientists, Mary Layton Atkinson, James A. Stimson and Frank R. Baumgartner, all of the University of North Carolina, and K. Elizabeth Coggins of Colorado College.The four scholars argue that there are three types of issues. The first two types are partisan issues (safety net spending, taxation, gun rights etc.) and nonpartisan issues, like the space program. Public opinion does not change much over time on these two types of issues, they write: “Aggregate opinion moves up and down (or, left and right) but fifty years later remains roughly where it started.”Such stability is not the case with the third category:These are social transformations affecting society in powerful ways, literally shifting the norms of cultural acceptability of a given issue position. These can be so powerful that they overwhelm the influence of any short-term partisan differences, driving substantial shifts in public opinion over time, all in the same direction.Two factors drive these transformations:Large swaths of the American public progressively adopting new, pro-equality positions on the issue, and the generational replacement of individuals with once-widespread but no-longer-majority anti-equality opinions — with younger individuals coming-of-age during a different time, and reflecting more progressive positions on these cultural shift issues.Opinion on these mega issues, Atkinson and her co-authors argue, has been moving steadily leftward. “The overall trend is unmistakable,” they write: “The public becomes more liberal on these rights issues over time,” in what Atkinson and her co-authors describe as the shifting “equality mood.”While trends like these would seem to lead to support for affirmative action, that is not the case. “We cannot treat belief in equality as a normative value as interchangeable with a pro-equality policy preference,” Atkinson and her co-authors write:This is particularly true because many pro-equality policies emphasize equality of outcomes rather than equality of opportunity. And while equality of opportunity is the touchstone of a liberal society (i.e., all Americans are entitled to the pursuit of life, liberty and happiness), the right to equality of outcomes has not been equally embraced by Americans. Once equality of opportunity is significantly advanced, or de jure equality is established, public support for further government action focused on equalizing outcomes may not exist, or at least wanes significantly.In other words, there has been a steady leftward movement on issues of equality when they are described as abstract principles, but much less so when the equality agenda is translated into specific policies, like busing or affirmative action.Atkinson and her co-authors point specifically to growing support for women’s equality in both theory and in practice, reporting on an analysis of four questions posed by the General Social Survey from the mid-1970s to 2004:When asked whether women should let men run the country and whether wives should put their husbands’ careers first, the policy responses look nearly identical to women’s ‘equality mood.’ The series trend in the liberal direction over time and reach a level of approximately 80 percent liberal responses by 2004.But when asked whether it is better for women to tend the home and for men to work, and whether preschool children suffer if their mothers work, the responses are far less liberal and the slopes of the lines are less steep. While responses to these questions trend in the liberal direction during the 1970s and 1980s, by the mid-1990s the series flattens out with liberalism holding between 50 and 60 percent.I asked Stimson to elaborate on this, and he emailed in reply:We have long known that the mass public does not connect problem and solution in the way that policy analysts do. Thus, for example, most people would sincerely like to see a higher level of racial integration in schools, but the idea of putting their kids on a bus to achieve that objective is flatly rejected. I used to see that as hypocrisy. But I no longer do. I think the real issue is that they just do not make the connection between problem and solution. That is why affirmative action has such a troubled history. People are quite capable of supporting policy goals (e.g., racial balance in higher education) and rejecting the means.Where does that leave the nation? Galston, in his Brooking essay, provided an answer:In sum, the country’s half-century experiment with affirmative action failed to persuade a majority of Americans — or even a majority of those whom the policy was intended to benefit — that it was effective and appropriate. University employers — indeed the entire country — must now decide what to do next to advance the cause of equal opportunity for all, one of the nation’s most honored but never achieved principles.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 113 Shares99 Views

      in Elections

      Supreme Court Wary of Trademark for ‘Trump Too Small’

      by

      In earlier cases, the justices struck down provisions of the trademark law on First Amendment grounds. But the one at issue here seemed likely to survive.The Supreme Court, which has in recent years struck down parts of the trademark law that prohibited registration of immoral, scandalous and disparaging marks, did not appear ready on Wednesday to do the same thing in a case concerning a California lawyer’s attempt to trademark the phrase “Trump too small.”The provision at issue in the case forbids the registration of trademarks “identifying a particular living individual except by his written consent.”There seemed to be consensus among the justices that the provision was different from the ones the court had rejected in 2017 and 2019. Some said that it did not discriminate based on viewpoint, which the First Amendment generally does not allow the government to do. Others added that there is a long history of allowing people to control the use of their names in commercial settings.Some justices pressed a more fundamental objection. Noting that the lawyer, Steve Elster, could use the phrase on merchandise without trademarking it, they wondered whether the First Amendment applied at all.“The question is, is this an infringement on speech?” Justice Sonia Sotomayor said. “And the answer is no.”The contested phrase drew on a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding, “And you know what they say about guys with small hands.”Mr. Elster, in his trademark application, said that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the trademark office to allow the registration.“As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech,” Judge Timothy B. Dyk wrote for the court.The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court.Malcolm L. Stewart, a deputy solicitor general who was presenting his 100th Supreme Court argument, said that granting Mr. Elster a trademark would allow him to forbid others from using it, diminishing the amount of the political speech the First Amendment is meant to protect.Chief Justice John G. Roberts echoed the point. “Particularly in an area of political expression,” he said, “that really cuts off a lot of expression other people might regard as important infringement on their First Amendment rights.”Justice Elena Kagan asked Jonathan E. Taylor, a lawyer for Mr. Elster, to identify a precedent in which the court had struck down a law conferring a government benefit like trademark registration that did not involve viewpoint discrimination.He replied, “I can’t point you to a case that’s precisely on all fours.”Justice Kagan responded that she could cite many decisions supporting the opposite proposition, naming a half-dozen.Commentary on the size of Mr. Trump’s hands has a long history. In the 1980s, the satirical magazine Spy needled Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, raising them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”If the Supreme Court upholds the provision challenged in the new case, it will be the end of a trend.In 2017, a unanimous eight-justice court struck down a different provision, one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.In 2019, the court rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, Mr. Stewart told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”If the justices were divided in the new case, Vidal v. Elster, No. 22-704, it was over the rationale for ruling to uphold the law before them, not on the outcome.Justice Samuel A. Alito Jr., for instance, asked Mr. Stewart for a theory that would allow him to vote for the government without rejecting a position he had staked out in an earlier case.The justice added that the task was not pressing. “I mean,” he said, “you don’t need my vote to win your case.” More

    • 138 Shares99 Views

      in Elections

      Supreme Court Weighs When Officials May Block Citizens on Social Media

      by

      The justices struggled to distinguish private conduct, which is not subject to the First Amendment, from state action, which is.The Supreme Court worked hard in a pair of arguments on Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.After Mr. Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.Justice Elena Kagan said on Tuesday that Mr. Trump’s Twitter feed was in an important sense official and therefore subject to the First Amendment.“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Justice Kagan said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mr. Mooppan said. “If he gave every one of those speeches at his personal residence, it wouldn’t somehow convert his residence into government property.”The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and whether Biden administration officials may contact social media platforms to combat what they say is misinformation.The first case argued Tuesday concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues in the schools.Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” Judge Marsha S. Berzon wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.Mr. Mooppan said the accounts were personal and were created and maintained without any involvement by the district.Justice Brett M. Kavanaugh pressed Mr. Mooppan on what it would take to make the accounts official and so subject to the First Amendment. “Is announcing rules state action?” the justice asked.Mr. Mooppan said it would be if the announcement was not available elsewhere. He gave a more equivocal answer to a question about notifications of school closures. But he said a general public safety reminder was not state action.Pamela S. Karlan, a lawyer for the parents, said Ms. O’Connor-Ratcliff’s Facebook feed was almost entirely official. “Of the hundreds of posts, I found only three that were truly non-job-related,” Ms. Karlan said, adding, “I defy anyone to look at that and think this wasn’t an official website.”The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.The posts prompted critical responses from a resident, Kevin Lindke, whom Mr. Freed eventually blocked. Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr. Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote. “And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”Justice Kagan told Allon Kedem, a lawyer for Mr. Lindke, that Mr. Freed’s page did not look particularly official.“There are a lot of baby pictures and dog pictures and obviously personal stuff,” she said. “And intermingled with that there is, as you say, communication with constituents about important matters. But it’s hard to look at this page as a whole, unlike the one in the last case, and not think that surely this could not be the official communications channel.” More

    • 113 Shares99 Views

      in Elections

      Supreme Court Delays Efforts to Redraw Louisiana Voting Map

      by

      The Louisiana dispute is one of several voting rights cases churning through the courts that challenge a state’s congressional map.The Supreme Court on Thursday upheld a lower-court ruling that delays an effort to redraw Louisiana’s congressional map, prolonging a bitter clash over the representation of Black voters in the state.The order temporarily leaves in place a Republican-drawn map that a federal judge had said diluted the power of Black voters while an appeal moves through the lower courts.Civil rights groups had sought emergency relief from the Supreme Court after a federal appeals court abruptly canceled a scheduled hearing aimed at drafting a new map for Louisiana. That map was to include two districts in which Black voters represent a large enough share of the population to have the opportunity to select a candidate. The appeals court said that the state legislature should have more time to redraw its own map before a lower court stepped in.The Supreme Court’s order was unsigned, which is typical when the justices rule on emergency applications, and there were no public dissents.Justice Ketanji Brown Jackson, in a brief concurring opinion, emphasized that Louisiana should resolve the dispute in time for the 2024 election.In asking the Supreme Court to intervene, the plaintiffs had argued that delays in the case could complicate efforts to instate a new map by the next election, leaving the state with a version that lumps Black voters from different parts of the state into one voting district, diluting their power.By the time the Supreme Court issued its order on Thursday, a hearing date had passed. Another has been set for February.The consolidated cases, Galmon v. Ardoin and Robinson v. Ardoin, are part of a larger fight over redistricting. State lawmakers in the South have contested orders to refashion congressional maps and establish additional districts to bolster Black representation. The outcomes could help tilt control of the House, where Republicans hold a razor-thin majority.Weeks earlier, the court refused a similar request by Alabama, which had asked the justices to reinstate a map with only one majority-Black district. A lower court had found that Republican lawmakers blatantly disregarded its order to create a second majority-Black district or something “close to it.”At issue in Louisiana is a voting map passed by the Republican-controlled Legislature in the winter of 2022. The map carved the state into six districts, with only one majority-Black district, which joined Baton Rouge and New Orleans, the state’s two largest cities. About a third of the population in the state is Black.The case has reached the Supreme Court before.A coalition that included the N.A.A.C.P. Louisiana State Conference, the Power Coalition for Equity and Justice and Louisiana voters sued state officials and said the map unfairly weakened the power of Black voters.A district court, siding with the plaintiffs, temporarily blocked Louisiana from using its map in any upcoming elections. A new map, it said, should include an additional district where Black voters could choose a representative. The court gave the Legislature until June 20, 2022, to sign off on a redrawn map.Louisiana immediately appealed to the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, and a three-judge panel unanimously denied the request. The state then asked the Supreme Court to intervene.The Supreme Court paused the case until it ruled in the Alabama case, Allen v. Milligan, which concerned similar questions. That essentially allowed the Republican-drawn map in Louisiana to go into effect during the 2022 election.The court lifted the pause in June after a majority of the justices, in a surprise decision, found Alabama’s map had unfairly undercut the power of Black voters. The justices said the appeals court should review the case before the 2024 elections. More

    • 163 Shares139 Views

      in Elections

      Democrats Need to Pick Up the Pace of Putting Judges on the Bench

      by

      With the outcome of the 2024 elections for the president and control of the Senate very much up in the air, Democrats must make a concerted effort to fill federal judicial vacancies before next November.Republicans did this very effectively before the end of the Trump presidency, leaving few vacancies for President Biden to fill when he took office. Now the Democrats must emulate that approach. And they must do so now.At the moment, there are two vacancies without nominees on appeals courts and 37 on district courts. Because the evaluation process of nominees takes time, it is imperative that the Biden administration quickly name nominees to those and future vacancies. The Senate then must work expeditiously to confirm those deemed suitable for the lifetime appointments.Mr. Biden has nominated 186 people to Article III judgeships, which include the Supreme Court and the federal appeals and district courts, according to the White House. At this point in their tenures, George W. Bush had nominated 211, followed by Mr. Trump’s 206, according to the Heritage Foundation’s Judicial Appointment Tracker. There have been inexplicable and troubling delays in this process. For example, two years ago, Judge Diana Motz of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., announced that she would take senior status, a form of semiretirement, when a successor was confirmed. She took senior status last year, though no replacement had been named at that time. And still no one has been nominated for this important judgeship.Time may be running out for the Biden administration.It is critical for federal judges who would like to be replaced by a Democratic president to take senior status so that Mr. Biden can appoint their successors with sufficient time to allow them to be confirmed by the current Senate. A federal judge or justice may take senior status after meeting the age and service requirements of the “Rule of 80” — the judge must be at least 65 years old, and the judge’s age and years of service must add up to 80. A total of 121 federal judges are now eligible for senior status but have not announced their plans, according to the group Balls and Strikes, which tracks that information. Of those, 44 were appointed by Democratic presidents. By Jan. 20, 2025, the date of the next presidential inauguration, that number could rise to 69.There is little reason for judges not to take senior status. They can continue to hear cases, even carry a full load of cases. And taking senior status allows the president to fill that seat on the bench. The judge can condition taking senior status on the confirmation of a successor. A senior judge typically is not allowed to participate in en banc decisions, where all (or a significant number) of the judges on the court review a matter that is particularly significant or complex. But that is the main restriction on what a senior judge may do.We are long past the time when it could be said that judges appointed by Republican and by Democratic presidents were indistinguishable. This was made clear in an analysis of Supreme Court rulings published in July 2022 by the data-driven news site FiveThirtyEight, which found the partisan divide among the current justices “is deeper than it’s been in the modern era.”And this partisan divide is not confined to the Supreme Court. There are often huge differences between how judges in the lower courts who were appointed by Democratic and by Republican presidents decide cases. For example, a federal appeals court recently upheld Tennessee and Kentucky laws prohibiting gender-affirming care for transgender minors, with the two Republican-appointed judges siding with the states and a judge initially nominated by President Bill Clinton dissenting. Whether it is reproductive rights or gun rights or employee rights, or in countless other areas, the outcome often depends on which president appointed the judge or judges hearing the case.For that reason, I wrote an opinion article in The Los Angeles Times in March 2014 urging Justice Ruth Bader Ginsburg, then 81, to retire so that President Barack Obama could replace her while there was a Democratic Senate and someone with progressive values would take her seat. She took offense at the suggestion, also raised by others, and remained on the bench until she died in September 2020, when President Trump replaced her with the conservative Justice Amy Coney Barrett. Justice Ginsburg gambled, and America lost.Likewise, I think of the liberal federal court of appeals judges who did not take senior status, though they were eligible during the Obama presidency. For example, Judge Stephen Reinhardt of the Ninth Circuit declined to take senior status; when he died at age 87 in 2017 President Trump replaced him with a conservative judge. By the time another liberal Ninth Circuit judge, Harry Pregerson, decided to take senior status in late 2015, he was 92, and though Mr. Obama quickly nominated a replacement, it was late in his term and got caught up in politics and President Trump ended up appointing another conservative to the seat.Creating vacancies will matter only if Mr. Biden quickly names replacements and the Senate confirms the nominees. If the president is not re-elected, the Republican president will fill any vacancies that exist upon taking office. And regardless of the outcome of the presidential election, if the Republicans take control of the Senate, the confirmation of judicial candidates nominated by a Democratic president will be far more difficult. That is why immediate action is imperative.A president’s most long-lasting legacy is arguably the judges he appoints. Many will serve for decades after the president leaves office. Republicans have tended to recognize this much more than Democrats. That needs to change, and quickly.Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley.Source photographs by John Slater and SergeyChayko/Getty ImagesThe Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares119 Views

      in Elections

      Clarence Thomas Recuses as Supreme Court Rejects Trump Lawyer’s Appeal

      by

      John Eastman, a conservative lawyer who had advised President Donald J. Trump, had sought to wipe out a decision that he said had harmed his reputation and that of his client.Justice Clarence Thomas, in a break from his practices in earlier cases involving the 2020 election, recused himself on Monday when the Supreme Court turned down an appeal from an architect of a plan to subvert the 2020 election.As is its custom, the court gave no reasons for denying review in the appeal, which was filed by John Eastman, a conservative lawyer who had advised President Donald J. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, offered no explanation for his decision to disqualify himself from the case. The justice’s wife, Virginia Thomas, known as Ginni, had participated in efforts to overturn the election.Mr. Eastman’s petition was viewed as a long shot. It elicited no response from any other party, and Mr. Trump did not file a brief in the case.Justice Thomas took part in a ruling last year on an emergency application from Mr. Trump asking the court to block the release of White House records concerning the Capitol attack. The court rejected the request. Only Justice Thomas noted a dissent, giving no reasons.He also participated in the court’s consideration of whether to hear a related appeal. The Supreme Court refused to hear the case, without noted dissent. There was no indication that Justice Thomas had recused himself.In December 2020, Justice Thomas participated in a ruling on an audacious lawsuit by Texas asking the court to throw out the election results in four battleground states. The court rejected the request, with Justices Thomas and Samuel A. Alito Jr. issuing a brief statement suggesting the majority had acted too soon in shutting down the case.In the case the court rejected on Monday, Mr. Eastman had asked the justices to wipe out a lower-court ruling that allowed a now disbanded House committee to see emails that he said were protected by attorney-client privilege. A federal trial judge said the privilege did not apply, citing an exemption to it for crimes and fraud.The committee, which investigated the Jan. 6 attack on the Capitol, obtained and disclosed the contested emails.The case was thus in important ways moot, but Mr. Eastman said the rulings had damaged his reputation and that of Mr. Trump.“The crime-fraud ruling of the district court imposes a stigma not only on petitioner,” the petition said, “but also on his former client, the former president of the United States and current candidate for the presidency in 2024.”In a ruling last year in a lawsuit over whether the committee could obtain the emails, Judge David O. Carter ruled that it was more likely than not that the communications involved crimes, prompting the exception to the attorney-client privilege.“The illegality of the plan was obvious,” he wrote. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”The judge added, “Based on the evidence, the court finds it more likely than not that President Trump corruptly attempted to obstruct the joint session of Congress on Jan. 6, 2021.” More

    • 188 Shares179 Views

      in Elections

      ‘Trump Is Scaring the Hell Out of Me’: Three Writers Preview the Second G.O.P. Debate

      by

      Frank Bruni, a contributing Opinion writer, hosted a written online conversation with Josh Barro, who writes the newsletter Very Serious, and Sarah Isgur, a senior editor at The Dispatch, to discuss their expectations for the second Republican debate on Wednesday night. They also dig into and try to sort out a barrage of politics around President Biden’s sagging approval numbers, an impeachment inquiry, a potential government shutdown and shocking political rhetoric from former President Trump.Frank Bruni: For starters, Josh and Sarah, Donald Trump is scaring the hell out of me. It’s not just his mooning over a Glock. It’s his musing that in what he clearly sees as better days, Gen. Mark Milley could have been executed for treason. Is this a whole new altitude of unhinged — and a louder, shriller warning of what a second term of Trump would be like (including the suspension of the Constitution)?Josh Barro: I don’t think people find Trump’s provocations very interesting these days. I personally struggle to find them interesting, even though they are important. I’m not sure this constitutes an escalation relative to the end of Trump’s service — the last thing he did as president was try to steal the election. So I’m not sure this reads as new — Trump is and has been unhinged, and that’s priced in.Bruni: Sarah, what do you make of how little has been made of it? Is Trump indemnified against his own indecency, or can we dream that he may finally estrange a consequential percentage of voters?Sarah Isgur: Here’s what’s wild. In one poll, the G.O.P. is now more or less tied with Democrats for “which party cares about people like me,” closing in on Democrats’ 13-point advantage in 2016 … and in another poll, the G.O.P. is leading Democrats by over 20 points on “dealing with the economy.” So how is Joe Biden even still in this race? And the answer, as you allude to, is Trump.Barro: Trump’s behavior has already estranged a consequential percentage of voters. If Republicans found a candidate who was both normal and law-abiding and a popularist, they’d win big, instead of trying to patch together a narrow Electoral College victory, like Trump managed in 2016 and nearly did again in 2020.Bruni: Sarah, you’re suggesting that Trump is a huge general election gift to Biden. To pivot to tonight’s debate, is there any chance Biden doesn’t get that gift — that he winds up facing Nikki Haley, Ron DeSantis or someone else?Isgur: Possible? Sure. Every year for Christmas, I thought it was possible there was a puppy in one of the boxes under the tree. There never was. I still think Ron DeSantis is probably the only viable alternative to Trump. But he’s looking far less viable than he was in June. And the more voters and donors flirt with Tim Scott or Nikki Haley, it becomes a race for No. 2 (see this debate) — and the better it is for Trump. That helps Trump in two ways: First, it burns time on the clock and he’s the front-runner. Second, the strongest argument for these other candidates was that Trump couldn’t beat Biden. But that’s becoming a harder and harder case to make — more because of Biden than Trump. And as that slides off the table, Republican primary voters don’t see much need to shop for an alternative.Barro: These other G.O.P. candidates wouldn’t have Trump’s legal baggage and off-putting lawlessness, but most of them have been running to Trump’s right on abortion and entitlements. And if Trump isn’t the nominee, he’ll quite possibly be acting to undermine whoever is the G.O.P. nominee. So it’s possible that Republicans are actually more likely to win the election if they nominate him than if they don’t.Isgur: You talk to these campaigns, and they will readily admit that if Trump wins Iowa, this thing is over. And right now he’s consistently up more than 30 points in Iowa. Most of the movement in the polls is between the other candidates. That ain’t gonna work.Barro: I agree with Sarah that the primary is approaching being over. DeSantis has sunk in the polls and he’s not making a clear argument about why Trump shouldn’t be nominated.Bruni: Do any of tonight’s debaters increase their criticism of him? Sharpen their attacks? Go beyond Haley’s “Gee, you spent a lot of money” and Mike Pence’s “You were not nice to me on Jan. 6”? And if you could script those attacks, what would they be? Give the candidates a push and some advice.Barro: DeSantis has been making some comments lately about how Trump kept getting beat in negotiations by Democrats when he was in office. He’s also been criticizing Trump for throwing pro-lifers under the bus. The unsaid thing here that could tie together these issues and Trump’s legal issues is that he is selfish — that this project is about benefiting him, not about benefiting Republican voters. It’s about doing what’s good for him.That said, this is a very tough pitch for a party full of people who love Trump and who think he constantly faces unfair attacks. But it’s true, and you can say it without ever actually attacking Trump from the left.Isgur: Here’s the problem for most of them: It’s not their last rodeo. Sure, they’d like to win this time around. And for some there’s a thought of the vice presidency or a cabinet pick. But more than that, they want to be viable in 2028 or beyond. Trump has already been an electoral loser for the G.O.P. in 2018, 2020 and 2022, and it hasn’t mattered. They aren’t going to bet their futures on Trump’s power over G.O.P. primary voters diminishing if he loses in 2024, and if he wins, he’ll be limited to one term, so all the more reason to tread lightly with Trump’s core voters. Chris Christie is a great example of the alternative strategy because it is probably his last race — and so he’s going straight at Trump. But it hasn’t fundamentally altered the dynamics of the race.Barro: I think DeSantis’s star certainly looks dimmer than it did when he got into the race.Isgur: DeSantis is worse off. But this was always going to happen. Better to happen in 2024 than 2028. But Josh is right. Political operatives will often pitch their candidate on there being “no real downside” to running because you grow your national donor lists and expand your name recognition with voters outside your state. But a lot of these guys are learning what Scott Walker, Jeb Bush and Tim Pawlenty have learned: There is a downside to running when expectations are high — you don’t meet them.Bruni: Give me a rough estimate — how much time have Haley and her advisers spent forging and honing put-downs of Vivek Ramaswamy? And would you like to suggest any for their arsenal? Josh, I’m betting you do, as you have written acidly about your college days with Ramaswamy.Barro: So I said in a column (“Section Guy Runs for President”) that I didn’t know Ramaswamy in college, but I have subsequently learned that, when I was a senior, I participated in a debate about Social Security privatization that he moderated. That I was able to forget him, I think, is a reflection of how common the overbearing type was at Harvard.Bruni: Ramaswamy as a carbon copy of countless others? Now you’ve really put me off my avocado toast, Josh. Is he in this race deep into the primaries, or is he the Herman Cain of this cycle (he asked wishfully)?Barro: I think the Ramaswamy bubble has already popped.Bruni: Popped? You make him sound like a pimple.Isgur: Your words, Frank.Barro: He makes himself sound like a pimple. He’s down to 5.1 percent in the RealClearPolitics polling average, below where he was just before the August debate. One poll showed his unfavorables going up more than his favorables after the debate — he is very annoying, and that was obvious to a lot of people, whether or not they share my politics.Isgur: Agree. He’s not Trump. Trump can weather the “take me seriously, not literally” nonsense. Ramaswamy doesn’t have it.Bruni: Let’s talk about some broader dynamics. We’re on the precipice of a federal shutdown. If it comes, will that hurt Republicans and boost Biden, or will it seem to voters like so much usual insider garbage that it’s essentially white noise, to mix my metaphors wildly?Barro: I’m not convinced that government shutdowns have durable political effects.Isgur: It seems to keep happening every couple years, and the sky doesn’t fall. It is important, though, when it comes to what the G.O.P. is and what it will be moving forward. Kevin McCarthy battling for his job may not be anything new. But Chip Roy is the fiscal heart and soul of this wing of the party, and even he is saying they are going to pay a political penalty.Barro: I find it interesting that Kevin McCarthy seems extremely motivated to avoid one, or at least contain its duration. He thinks the politics are important.Isgur: I’d argue the reason it’s important is because it shows you what happens when voters elect people based on small donor popularity and social media memes. Nobody is rewarded for accomplishments, which require compromise — legislative or otherwise. These guys do better politically when they are in the minority. They actually win by losing — at least when their colleagues lose, that is. That’s not a sustainable model for a political party: Elect us and we’ll complain about the other guys the best!Bruni: What about the impeachment inquiry? The first hearing is on Thursday. Is it and should it be an enormous concern for Biden?Isgur: I’m confused why everyone else is shrugging this thing off. I keep hearing that this doesn’t give the G.O.P. any additional subpoena powers. Yes, it does. We just did this when House Democrats tried to subpoena Trump’s financial records. The Supreme Court was very clear that the House has broad legislative subpoena power when what they are seeking is related to potential legislation, but that it is subject to a balancing test between the two branches. But even the dissenters in that case said that Congress could have sought those records pursuant to their impeachment subpoena power. So, yes, the tool — a congressional subpoena — is the same. But the impeachment inquiry broadens their reach here. So they’ve opened the inquiry, they can get his financial records. Now it matters what they find.Barro: I agree with Sarah that the risk to Biden here depends on the underlying facts.Isgur: And I’m not sure why Democrats are so confident there won’t be anything there. The president has gotten so many of the facts wrong around Hunter Biden’s business dealings, I have no idea what his financial records will show. I am no closer to knowing whether Joe Biden was involved or not. But I’m not betting against it, either.Barro: I think the Hunter saga is extremely sad, and as I’ve written, it looks to me like the president is one of Hunter’s victims rather than a co-conspirator. I also think while there are aspects of this that are not relatable (it’s not relatable to have your son trading on your famous name to do a lot of shady business), there are other aspects that are very relatable — it is relatable to have a no-good family member with substance abuse and psychological issues who causes you a lot of trouble.Obviously, if they find some big financial scheme to transfer money to Joe Biden, the politics of this will be very different. But I don’t think they’re going to find it.Bruni: But let’s look beyond Hunter, beyond any shutdown, beyond impeachment. Sarah, Josh, if you were broadly to advise Joe Biden about how to win what is surely going to be a very, very, very close race, what would be your top three recommendations?Barro: The president’s No. 1 political liability is inflation, and food and fuel prices are the most salient aspect of inflation. He should be doing everything he can to bring price levels down. Unfortunately, he doesn’t have a ton of direct control over this — if presidents did, they wouldn’t get tripped up by this issue. But he should be approving more domestic energy production and transmission, and he should be bragging more about doing so.U.S. oil production is nearing record levels, but Biden is reluctant to talk about that because it makes climate activists mad. If he gets attacked from the left for making gasoline too cheap and plentiful, great.Isgur: Make it a referendum on Trump. It’s what Hillary Clinton failed to do in 2016. When it’s about Trump, voters get squeamish. When it’s about Biden, they think of all of his flaws instead.Bruni: Squeamish doesn’t begin to capture how Trump makes this voter feel. Additional recommendations?Barro: Biden generally needs to be willing to pick more fights with the left. Trump has shown how this kind of politics works — by picking a fight with pro-life activists, he’s moderating his own image and increasing his odds of winning the general election. There’s a new poll out this week that says that voters see the Democratic Party as more extreme than the Republican Party by a margin of nine points. Biden needs to address that gap by finding his own opportunities to break with the extremes of his party — energy and fossil fuels provide one big opportunity, as I discussed earlier, but he can also break with his party in other areas where its agenda has unpopular elements, like crime and immigration.Isgur: The Republican National Committee handed Biden’s team a gift when they pulled out of the bipartisan debate commission. Biden doesn’t have to debate now. And he shouldn’t. The Trump team should want a zillion debates with Biden. I have no idea why they gave him this out.Bruni: I hear you, Sarah, on how Biden might bear up for two hours under bright lights, but let’s be realistic: Debates don’t exactly flatter Trump, who comes across as one part feral, two parts deranged. But let’s address the Kamala Harris factor. Josh, you’ve recommended replacing Harris, though it won’t happen. Maybe that’s your third? But you have to tell me whom you’d replace her with.Barro: Harris isn’t just a 2024 problem but also a 2028 problem. She is materially less popular than Biden is, and because of Biden’s age, he even more than most presidents needs a vice president who Americans feel comfortable seeing take the presidency, and the polls show that’s not her. I’ve written about why he should put Gretchen Whitmer on the ticket instead. What Biden needs to hold 270 electoral votes is to keep the Upper Midwest swing states where his poll numbers are actually holding up pretty well — Michigan, Pennsylvania and Wisconsin. The popular governor of Michigan can do a lot more for him there than Harris can.Isgur: It is a big problem that voters don’t think Biden will make it through another term, so that the V.P. question isn’t will she make a good vice president but will she make a good president. Democrats are quick to point out that V.P. attacks haven’t worked in the past. True! But nobody was really thinking about Dan Quayle sitting behind the Resolute Desk, either. But I don’t think they can replace Harris. The cost would be too high with the base. I also don’t think Harris can get better. So my advice here is to hide her. Don’t remind voters that they don’t like her. Quit setting her up for failure and word salads.Bruni: I want to end with a lightning round and maybe find some fugitive levity — God knows we need it. In honor of Senator Robert Menendez of New Jersey, I wonder: How many gold bars does each of you have in your basement or closet? Mine are in my pantry, behind the cashews, and I haven’t counted them lately.Barro: I understand Bob Menendez keeps tons of cash in his house because his family had to flee a Communist revolution. This is completely understandable. The only reason I don’t keep all that gold on hand is that I do not have a similar familial history.Isgur: Mine are made of chocolate, and they are delicious. (Dark chocolate. Milk chocolate is for wusses, and white chocolate is a lie.)Bruni: Are we measuring Kevin McCarthy’s remaining time as House speaker in hours, weeks or months, and what’s your best guess for when he subsequently appears in — and how he fares on — “Dancing With the Stars”?Isgur: Why do people keep going on that show?! The money can’t possibly be that good. I’ll take the over on McCarthy, though. The Matt Gaetz caucus doesn’t have a viable replacement or McCarthy wouldn’t have won in the first place … or 15th place.Barro: I also take the over on McCarthy — most of his caucus likes him, and unlike the John Boehner era, he hasn’t had to resort to moving spending bills that lack majority support in the conference. Gaetz and his ilk are a huge headache, but he won’t be going anywhere.Bruni: Does the confirmed November debate between Ron DeSantis and Gavin Newsom — moderated by Sean Hannity! — represent reason to live or reason to emigrate?Barro: Ugh. I find Newsom so grating and slimy. All you really need to know about him is he had an affair with his campaign manager’s wife. He’s also been putting his interests ahead of the party’s, with this cockamamie proposal for a constitutional amendment to restrict gun rights. It will never happen, will raise the salience of gun issues in a way that hurts Democratic candidates in a general election and will help Newsom build a grass roots email fund-raising list.Isgur: Oh, I actually think this is pretty important. Newsom and DeSantis more than anyone else in their parties actually represent the policy zeitgeist of their teams right now. This is the debate we should be having in 2024. As governors, they’ve been mirror images of each other. The problem for a Burkean like me is that both of them want to use and expand state power to “win” for their team. There’s no party making the argument for limited government or fiscal restraint anymore. And there’s no concern about what happens when you empower government and the other side wins an election and uses that power the way they want to.Bruni: You’ve no choice: You must dine, one-on-one, with either Matt Gaetz or Marjorie Taylor Greene. Whom do you choose, and how do you dull the pain?Barro: Marjorie Taylor Greene, but we’d spend the whole time talking about Lauren Boebert.Isgur: Damn. That was a good answer. Can I pick George Santos? At least he’s got great stories.Bruni: Last question — we’ve been plenty gloomy. Name something or a few things that have happened over recent weeks that should give us hope about the country’s future.Barro: The Ibram Kendi bubble popped! So, that was good.More seriously, while inflation remains a major problem (and a totally valid voter complaint), the economy has continued to show resiliency on output and job growth. People still want to spend and invest, despite 7 percent mortgage rates. It points to underlying health in the economy and a reason to feel good about American business and living standards in the medium and long term.Isgur: I had a baby this month — and in fact, September is one of the most popular birth month in the United States — so for all of us who are newly unburdened, we’re enjoying that second (third?) glass of wine, deli meat, sushi, unpasteurized cheese and guilt-free Coke Zero. And the only trade-off is that a little potato screams at me for about two hours each night!But you look at these new studies showing that the overall birthrate in the United States is staying low as teen pregnancies drop and birth control becomes more available but that highly educated woman are having more kids than they did 40 years ago … clearly some people are feeling quite hopeful. Or randy. Or both!Bruni: Sarah, that’s wonderful about your little potato — and your sushi!Barro: Congratulations!Bruni: Pop not only goes the weasel but also the Ramaswamy and the Kendi — and the Barro, ever popping off! Thank you both. Happy Republican debate! If that’s not the oxymoron of the century.Frank Bruni is a professor of journalism and public policy at Duke University, the author of the book “The Beauty of Dusk” and a contributing Opinion writer. He writes a weekly email newsletter.Josh Barro writes the newsletter Very Serious and is the host of the podcast “Serious Trouble.”Sarah Isgur is a senior editor at The Dispatch and the host of the podcast “Advisory Opinions.”Source photograph by ZargonDesign, via Getty Images.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 113 Shares179 Views

      in Elections

      Supreme Court Declines to Revisit Alabama Voting Map Dispute

      by

      For the second time in recent months, the Supreme Court ruled against Alabama lawmakers and their proposed congressional district map.The Supreme Court on Tuesday refused Alabama’s request to reinstate a congressional map drawn by Republican lawmakers that had only one majority-Black district, paving the way for a new map to be put in place before the 2024 election.Alabama’s request to keep its map was the second time in under a year that it had asked the Supreme Court to affirm a limited role of race in establishing voting districts for federal elections in what amounted to a defiant repudiation of lower-court rulings. In the latest twist in the case, the lower court had found that the state had brazenly flouted its directive to create a second majority-Black district or something “close to it.”The court’s order gave no reasons, which is often the case when the justices decide on emergency applications. The ruling clears the way for a special master and court-appointed cartographer to create a new map.The outcome of the dispute could ultimately tip the balance of the House, where Republicans hold a thin majority. The trajectory of the case is also being closely watched by lawmakers in Washington and other states where similar battles are playing out.In a surprise decision in June, the Supreme Court found that Alabama had hurt Black voters in drawing its voting map, reaffirming part of a landmark civil rights law.Chief Justice John G. Roberts Jr., who has long been skeptical of race-conscious decision making, wrote the majority opinion. Justice Brett M. Kavanaugh joined him, along with the courts three liberal justices — Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan.At issue was Alabama’s congressional map. Its Republican-controlled legislature sliced up the state into seven districts, continuing to maintain only one majority Black district, although about a quarter of state’s population is Black.After the Supreme Court’s decision, state lawmakers scrambled to draw a new map. Over the objections of Democrats, the legislature pushed through a version that changed district boundaries but that did not include an additional majority-Black district. Instead, it increased the percentage of Black voters in one district to about 40 percent, from about 30 percent.The federal three-judge panel overseeing the case found lawmakers had, yet again, likely violated the Voting Rights Act of 1965.“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” the panel wrote. The judges added that the Legislature’s proposal “plainly fails to do so.”In asking the Supreme Court to intervene, Alabama’s attorney general, Steve Marshall, acknowledged that the Legislature had not added a second majority-Black district to its map as dictated by the federal court, but said its new map still complied with the law.Unless the court acted, he wrote, “the state will have no meaningful opportunity to appeal before the 2023 plan is replaced by a court-drawn map that no state could constitutionally enact.”In their brief, the plaintiffs, including a group of Black voters and advocacy organizations, urged the justices to reject Alabama’s request for relief and said the state had “unabashedly” sought to defy the courts using “recycled arguments.”After the Supreme Court’s decision in June, the plaintiffs wrote, Alabama’s Legislature had drawn its plan in secret, with no opportunity for public comment, and had enacted it “over alternative plans that were supported by Black Alabamians.”“Disagreement with this court’s ruling is not a valid reason to defy it — and certainly not a basis for a grant of an emergency stay application,” they wrote. More