The Supreme Court Is Losing Control Over Our Trump-Stacked Judiciary

Last June, Chief Justice John Roberts and Justice Brett Kavanaugh saved the Voting Rights Act in a surprise 5–4 decision. The Supreme Court’s ruling in Allen v. Milligan invalidated Alabama’s egregious racial gerrymander, affirming nonwhite Americans’ equal voting power, and overall, upheld the federal ban on racial discrimination in the electoral process. It should have reinvigorated the promise of a multiracial democracy—but lower courts, still dominated by Donald Trump’s appointees, haven’t read it that way. Instead, Trump’s judges appear to see Milligan not as an affirmation of our democracy but as a threat to their project of dismantling the Voting Rights Act by any means necessary. Some are now even refusing to apply the logic of Milligan in opinions that bristle with hostility toward Roberts and Kavanaugh.

This growing lower court rebellion shows just how tenuous the Supreme Court’s few left-leaning decisions really are—after all, they are only as meaningful as they are enforced. And it puts the fate of American democracy back into the hands of Roberts and Kavanaugh, its unlikely and often fickle defenders.

Start with the most dire threat to the VRA today: a Nov. 20 decision from the 8^th U.S. Circuit Court of Appeals written by David Stras, a Trump appointee. In a scantily reasoned opinion, Stras cut the legs off the Voting Rights Act by announcing that private parties may not file lawsuits against states’ discriminatory election laws. (Stras was joined by Raymond Gruender, a MAGA-aligned George W. Bush appointee.) Only the attorney general of the United States, he wrote, may initiate such lawsuits; individual citizens and advocacy groups cannot.

Why is this such a problem? Since the U.S. attorney general has limited resources—and because Republican attorneys general no longer bring VRA suits, the main counter to infractions to the VRA is private entities. And indeed, private plaintiffs have been filing lawsuits under the relevant provision of the VRA, known as Section 2, since it was enacted in 1982. The University of Michigan’s Voting Rights Initiative has counted well over 400 suits challenging discriminatory election laws, and the overwhelming majority of these lawsuits have been brought by private plaintiffs, not the attorney general. And not one of them was thrown out on the grounds that private plaintiffs cannot sue under Section 2 of the VRA. Zero. None. Because the Supreme Court’s VRA decisions permit private lawsuits across the board. Indeed, in 1996, a majority of the court expressly stated that these suits may be brought by citizens rather than the attorney general. And SCOTUS relied on this principle in Milligan, a decision that’s barely six months old, for good reason: The VRA says that “the attorney general or an aggrieved person” may challenge an election law. If a victim of voting discrimination is not an aggrieved person, who is?

Stras’ conclusion defies the plain text of the statute, history, and common sense. It rejects real SCOTUS precedent in favor of the fringe views of two far-right justices, Clarence Thomas and Neil Gorsuch. As Jay Willis wrote in Slate, Stras’ opinion also flies in the face of Congress’ stated intent to let private parties sue under the VRA. He seems motivated not by law or facts, but by annoyance that Black Americans would dare defend their right to equal representation. He and Gruender have simply defied the Supreme Court and dared five justices to call his bluff. Their view would neuter not only Milligan but virtually every VRA suit in the land—a feat that would more or less destroy the VRA. And that, of course, is the point.

Turn next to Rose v. Raffensperger, which the 11^th U.S. Circuit Court of Appeals handed down on Friday. Rose challenges the structure of Georgia’s Public Service Commission, which regulates utilities like power plants. The five members of the PSC are elected at large, by the state as a whole. At-large systems often prevent racial minorities from electing their preferred candidates, empowering the white majority to prevail every time. The discriminatory impact of these schemes made them a favored tool in the Jim Crow era. In 2020 voting rights advocates in Georgia filed suit alleging that the PSC carries on this tradition.

In August, a federal judge agreed with the plaintiffs and struck down the at-large system, mandating single-member districts instead. The order, which flowed naturally from Milligan, would’ve given nonwhite voters real influence over the PSC for the first time ever. The conservative 11^th Circuit, though, would not let that happen. In an opinion by Judge Lisa Branch, a Trump appointee, the court upheld Georgia’s old system. (She was joined by Judge Britt Grant, another Trump appointee, and Harvey Schlesinger, a George H.W. Bush appointee.) Federal judges, Branch declared, can’t compel a state to use single-member districts due to “general principles of federalism.” Doing so, she wrote, “would impermissibly alter Georgia’s chosen form of government.”

Branch is a devout foe of the VRA, having previously argued (in this dissent) that the law doesn’t let voters sue their states over discriminatory election laws (which is in fact its very purpose). Here, she took another big swing and hit the Supreme Court right in the jaw. Her opinion elevated the states’ rights to control at-large elections over citizens’ right to an equal vote for their own representation—a notion that Milligan rebutted head-on. Indeed, the chief justice’s opinion pointed out that Congress specifically added this right after the Supreme Court upheld an at-large election system in Mobile, Alabama. Roberts also noted that Congress, in this ruling, approvingly cited a 1973 ruling that ordered multimember districts “​​redrawn into single-member districts.” Plus, as Ian Millhiser noted in Vox, the VRA applies equally to states and their “political divisions.” The legal distinction that Branch devised just doesn’t exist.

And still, Stras’ and Branch’s high jinks don’t quite reach the level of insubordination achieved by the 5^th U.S. Circuit Court of Appeals in September. Shortly after issuing the Milligan decision, the Supreme Court directed the 5^th Circuit to resolve a similar one, Robinson v. Ardoin, in time for the 2024 elections. Ardoin involves a racial gerrymander in Louisiana that’s indistinguishable from the one that SCOTUS invalidated in Milligan. U.S. District Judge Shelly Dick struck down Louisiana’s map in 2022, but the Supreme Court froze her decision while it pondered the fate of the VRA. By the time SCOTUS sent the question back down to the Fightin’ 5^th Circuit, Louisiana had been given more than a year to plan for a hearing over new maps. Dick gave the state 11 additional weeks to prepare. Yet Louisiana asked the 5^th Circuit to cancel the hearing anyway, insisting that it had insufficient headway to mount its arguments. The state sought a writ of mandamus—appropriate only when a lower court commits an outrageous and unthinkable error—to halt Dick’s effort to move the case forward.

Two judges, Edith Jones and James Ho, granted Louisiana’s request, violating centuries of precedent in the process. They accused Dick of playing “a game of ambush” by allowing Louisiana a mere 15 months’ preparation. Jones, a notoriously extreme Ronald Reagan appointee, claimed (absurdly) that Dick had “placed the state at an intolerable disadvantage legally and tactically.” Ho, a Trump appointee, charged Dick with distracting “busy elected officials and their staffs” from “countless other pressing matters of importance” in a manner “unfair to the citizens of Louisiana.”

The problem with these outlandish claims is that they could apply anytime a court orders a legislature to redraw illegal maps. And that, too, is the point: Jones’ and Ho’s gripes carried the unsubtle implication that SCOTUS, by reaffirming the VRA, had distracted state legislators from legitimate lawmaking. The two judges were also trying to run out the clock. The Supreme Court admonished the 5^th Circuit to wrap up the case in advance of 2024, which would mean giving Louisiana a second majority-Black (and likely Democratic) congressional district. Jones and Ho tried to thwart that chain of events. Their plot was foiled only when a different panel of judges accepted the inevitable and let Dick begin a process that will culminate in new, legal maps.

The message from all three courts is aimed squarely at Roberts and Kavanaugh: You may have made peace with the VRA, but we have not, and we’ll do whatever we can to kneecap your handiwork. It doesn’t help that few judges are more openly contemptuous of the Supreme Court’s sporadic moderation than Ho. This is the same guy who said the government can’t disarm domestic abusers because wives falsely accuse their husbands of violence to gain leverage in their fight for alimony. When the Supreme Court shredded his reasoning from the bench, he fired back with an angry opinion in an unrelated case suggesting that the conservative justices had betrayed their own principles. Trump judges like Stras and Branch are more understated in their defiance, but the result is the same: They are gunning for the court’s supposed swing votes—especially Kavanaugh, who frequently calibrates his jurisprudence to maximize approval from his allies.

There’s no guarantee either justice will stand fast. Kavanaugh, after all, has hinted that he thinks the VRA might have an expiration date, while Milligan remains an anomaly in the chief justice’s otherwise bleak voting rights jurisprudence. Trump’s judges are tactically pushing the envelope in the hopes that one man will back down and rejoin their assault on democracy. It is a shameless gamble, but not a bad bet. After all, they need to flip only one vote to receive a windfall.