Supreme Court Served Up Another Chance to Kill Voting Rights Act

The end of January brought two momentous decisions from two very different courts. First, on Jan. 29, the left-leaning Pennsylvania Supreme Court declared that abortion restrictions constitute sex discrimination under the state’s Equal Rights Amendment, rendering them “presumptively unconstitutional.” Then, on Jan. 30, the hard-right U.S. Court of Appeals for the 8^th Circuit refused to reconsider an earlier opinion by a three-judge panel that dealt a potentially fatal blow to the Voting Rights Act. Dahlia Lithwick and Mark Joseph Stern discussed the two cases on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.

Dahlia Lithwick: One topic we really need to think about this week is: What does courage look like in a judge? Because on Monday, we saw the Pennsylvania Supreme Court issue a completely capacious beatdown of Dobbs showing how Justice Samuel Alito cherry-picked some of the worst misogynistic history and cited it as the last word on women’s equality and dignity and freedom. The Pennsylvania Supreme Court even cited law review articles suggesting that Justice Alito is wrong. And that really is a heavy lift for progressive judges, even just to say: Here are 50 law review articles suggesting that Justice Alito is wrong on history and also wrong on equality.

Mark Joseph Stern: I think progressive judges are just temperamentally averse to calling BS on the U.S. Supreme Court. They tend to be much more restrained in this area. You know, we’ve seen the Fightin’ 5^th U.S. Circuit Court of Appeals defy SCOTUS and just openly refuse to enforce its precedents. We don’t see that with left leaning-judges today, almost ever.

But you have this fanaticism on the conservative side, with judges just inventing new boundaries to push. Which leads me to the 8^th Circuit, which wants to end whatever vestiges remain of Section 2 of the Voting Rights Act, and to do so in the boldest way possible.

So this past week, the full 8^th Circuit refused to reconsider a truly abhorrent decision written by Judge David Stras, a Donald Trump appointee, which held that individual voters do not have a right to sue under Section 2 of the Voting Rights Act, which is basically the last operable section left in the entire law. Back in the fall, Stras said that under his reading of the act, only the attorney general of the United States is ever entitled to bring suits under Section 2 to defend voting rights. And if the attorney general doesn’t get involved, the entire suit has to be thrown out. As Judge Lavenski Smith pointed out in dissent at the time, this was a truly unprecedented move. There have been at least 400 cases brought under Section 2 in the last 40 years, and at least 182 were successful. And only 15 of those suits were brought by the attorney general. If Stras is right, then, the Voting Rights Act is dead.

But Stras is wrong. A majority of the Supreme Court has previously held that there is a private right to sue under Section 2. The text of the law itself says that either the attorney general or an aggrieved voter can bring a lawsuit. Stras swept all that away. And I thought there was a remote chance that the full 8^th Circuit might reconsider his ruling, because this is so extreme and unprecedented and directly defies the Supreme Court. But only three judges on the entire court were willing to stand up and say: We should revisit this decision because it’s wrong. And one of them is Judge Steven Colloton, who is a conservative George W. Bush appointee. I mean, this guy worked with Kenneth Starr. He helped Bush win the 2000 election. He’s a dyed-in-the-wool conservative. And he wrote a scathing dissent saying, basically: Our decision is disastrously wrong and in defiance of the Supreme Court, and it’s a shame that we’ve allowed it to stand.

I want to connect this up to something we’ve talked about a lot because we do talk about lower courts—often in the context of the 5^th Circuit—kind of jamming the Supreme Court from below, right?

Right. And we’re seeing this perversion of the notion of what it means to be a courageous judge, this idea that it means overturning the Supreme Court from below because you have a beef with their own precedents, or minimizing the rights of the most vulnerable among us. It reminds me of Judge James Ho, on the 5^th Circuit, who plays this same game. When he wrote a concurrence saying it was important to stand up for the rights of domestic abusers to keep their guns, he framed that as judicial courage, too.

You also have “courageous” judges like Matthew Kacsmaryk suddenly saying, “Oh, the Comstock Act bans abortion, that’s a thing.” I mean, the Supreme Court probably doesn’t want to be deciding Kacsmaryk’s stupid mifepristone case in an election year shortly after Dobbs, but there it is. They have to.

I do want to point out that we aren’t saying progressive or moderately conservative judges who refuse to invent the law on the fly, the way Judge Stras did here, lack courage. It’s more that, unlike some of their colleagues on the far right, they aren’t going to force the issue down the Supreme Court’s throat. It’s a sense of institutional humility that’s all but lacking in those crazypants decisions coming down from conservative judges who just don’t care what precedent says or what the text of the Voting Rights Act requires. They just want what they want and they want it now. And they think they have five votes on SCOTUS already.

As you and I have written over and over again, it feels like everything is up for grabs at SCOTUS these days. When the court is overturning so many precedents each term, judges like Stras and Ho and Kacsmaryk feel like they might as well take their moonshots because it’s as good a time as any to see if they can overturn huge areas of the law that favor Civil Rights. And there’s just no corollary to that for progressives or even center-right judges. They feel bound by precedent that the far right thinks they can obliterate from below because they’ll surely nab five votes on a court with a six-justice conservative supermajority.