Clarence Thomas Just Made Another Mess for His Colleagues to Clean Up

Back in July, the Supreme Court shocked observers by turning down a chance to do what it loves doing most: dismantle the Voting Rights Act, piece by piece. In Allen v. Milligan, a challenge brought by Alabama voters to a post-census redistricting map, five justices held that the map likely violated Section 2 of the act, which bars states from passing laws that make it harder for people of color to vote. Chief Justice John Roberts, a man who has spent his entire career working to hollow out the act, wrote an opinion that recast himself as a diligent champion of democracy, framing his opinion upholding this section of the VRA as a “faithful application” of long-standing precedent.

Justice Clarence Thomas, however, as he is wont to do in cases that affirm the existence of civil rights, dissented. And Thomas, as he is wont to do in cases he loses, extended a conspicuous invitation to right-wing activists and/or lower court judges in a footnote: The opinion in Milligan, he noted, “does not address whether [Section 2] contains a private right of action.” In other words, whatever Section 2 does or does not permit lawmakers to do, Thomas suggested that the basic question of whether people can even get into courtrooms to enforce it remained something of an open question.

This past week, a federal appeals court took the hint. In an opinion written by Trump appointee David Stras and joined by George W. Bush appointee Raymond Gruender, a three-judge panel of the U.S. Court of Appeals for the 8^th Circuit reached the novel conclusion that only the federal government—specifically, the attorney general—can enforce Section 2 of the Voting Rights Act. Everyone else, from voting rights organizations to state law enforcers to regular people who are just tired of decennial attempts to gerrymander them out of electoral existence, is out of luck.

Stras’ opinion, if the Supreme Court allows it to stand, is as disastrous for the future of multiracial democracy as it is useful to the conservative legal movement’s policy agenda. Private parties have used Section 2 to bring just about every voting rights case in recent memory. That has been especially true since 2013, when the court in Shelby County v. Holder effectively invalidated Section 5 of the act, which had, until then, been its most robust enforcement mechanism, requiring Department of Justice preclearance to voting changes in certain jurisdictions. In his opinion, Roberts tried to downplay Shelby County’s impact by emphasizing that it “in no way affects” Section 2, which became, by default, the last, best hope for protecting access to the ballot.

The 8^th Circuit panel’s decision would snap this already-way-too-thin reed in two. Even under Democratic presidential administrations, the Department of Justice simply doesn’t have the resources to play racism whack-a-mole with every single jurisdiction that tries to evade the Voting Rights Act’s prohibitions. Under Republican presidential administrations, meanwhile, the Voting Rights Act would become an aspirational nullity if private actors were not allowed to seek remedies in court.

It is hard to overstate how much Stras has to strain to reach his preferred conclusion. It is “unclear,” he says, whether the statute provides for a private right of action, which he, for some reason, counts as a strike against it. Moving on to legislative history, Stras acknowledges that both chambers of Congress explicitly declared that they intended Section 2 to permit private lawsuits but deems this evidence irrelevant to resolving the ambiguity he purports to identify. (Nothing says, “Respect for a co-equal branch of government” like finding reasons to ignore that co-equal branch when it says things you don’t like.)

As for literally decades’ worth of decisions, both from the Supreme Court and lower federal courts, that fly in the face of his argument? Stras hand-waves them away as “background assumptions” that he—apparently the first judge to correctly interpret the act in the nearly 60 years since its enactment—is under no obligation to accept. (Ditto the multiple legislative reenactments of the Voting Rights Act that have not yielded any reason to question the private right of action’s existence.) In a profession ostensibly obsessed with incrementalism and restraint, this is a wild power grab. It is roughly analogous to a disgruntled DMV employee refusing to process your driver’s license renewal paperwork, and also unilaterally decreeing that you were never allowed to operate a motor vehicle in the first place.

In a brief dissent, Chief Judge Lavenski Smith—a George W. Bush appointee, and the 8^th Circuit’s only active Black judge—sounds almost mystified by his colleagues’ casual audacity. “Admittedly, the [Supreme] Court has never directly addressed the existence of a private right of action” under Section 2, Smith writes. “However, it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists.” His opinion characterizes the majority’s gambit as “ambitious” and “a major upheaval in the law,” which is about as close as a federal judge gets to publicly opining that another federal judge is full of shit.

Even before Stras begins twisting himself into logical pretzels, though, his introductory prose sort of gives the game away. The case itself is a challenge to the map for the Arkansas House of Representatives, which includes just 11 majority-Black districts out of 100. (Arkansas is about 15.6 percent Black.) Stras presents this information using language laced with contempt for the very concept of voting rights: “Quarreling over district lines begins like clockwork every ten years,” he says; the plaintiffs who oppose the map, he sighs, “sued nearly everyone who had anything to do with it.” This is not serious legal analysis; it is the collected grumblings of a crank who finds it annoying that Black people keep crowding his docket with cases insisting that they have a right to vote.

From here, the case is likely to make its way to the Supreme Court, especially since a different federal appeals court reached the opposite conclusion earlier this month. The good news (to the extent that there is “good news” about a decision limiting Voting Rights Act enforcement in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota to the Department of Justice) is that I do not think Stras’ argument will find a receptive audience. Thomas might like it, and perhaps Justice Neil Gorsuch, who included a similar just-asking-questions line about Section 2 in a concurring opinion in Brnovich v. DNC two years ago. Given how many glowing headlines Roberts and company earned from Allen v. Milligan, though, I sort of doubt that the court allows two random appeals court judges to rewrite civil rights law in the graven image of Kris Kobach.

Even if this ends with Roberts once again gallantly riding to democracy’s rescue, cases like this one are the inevitable output of a judiciary controlled by conservatives at every level. Thomas and Gorsuch float these little trial balloons because they know what will happen next: Conservative lawyers will cook up harebrained arguments that conservative courts can use to make it easier for more Republicans to win more elections in more places. Lower court judges, who are perpetually competing with one another for a promotion during the next Republican administration, have an especially powerful incentive to answer the Federalist Society call of duty. Both Stras and Gruender were on Trump’s Supreme Court shortlist; this little stunt makes it likely that they make the next version, too.

The case is also part of a recent trend that will continue in the years to come, in which the Supreme Court will, more or less, have to go back and clean up its own mess. (This is already happening in Second Amendment law, where the court in United States v. Rahimi is expected to “clarify” its decision in New York State Rifle & Pistol Association v. Bruen, which declared the government all but powerless to address the gun violence crisis.) It will be great if the justices generously allow voters to protect voting rights, just as it will be great if they affirm that, yes, the Constitution allows the state to disarm domestic abusers before they kill someone. The fact that the court has to spend its time answering these questions, though, is a damning indictment of a legal system that keeps asking them in the first place.