American trust in the federal court system is at an all time low, according to the latest Gallup poll. Just 47 percent of people have “a great deal” or “a fair amount” of trust in the judicial branch of the federal government, down 20 points in the last two years. Another poll from Gallup found that just 25 percent of Americans have confidence in the Supreme Court. Confidence in the courts has steadily eroded over the last few years as a hyper partisan Senate blocked President Obama’s appointment of Merrick Garland and then waged a series of controversial hearings during the Trump era, especially the appointment of Justice Brett Kavanaugh.
A full third of the court was appointed by President Trump, securing a 6-3 conservative majority for years to come. That new ideological reality was driven home last session with a series of controversial rulings, most notably the overturning of Roe v. Wade.
Chief Justice John Roberts has expressed concerns about the waning reputation of the Court and will navigate another contentious session that could prove as pivotal as the last. In particular, a series of cases are being considered that could significantly alter existing protections for people of color and undermine voting laws that were secured during the civil rights movement.
The Court began hearing oral arguments this week so I thought we’d do a little preview of two of the cases looming on the horizon.
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Is this the end of the Voting Rights Act?
On Tuesday, SCOTUS heard arguments in a Merrill v. Milligan, a case involving racial gerrymandering in Alabama. In 2021, Alabama released a new redistricting map that included just one district that had a Black majority, despite the state being nearly 30% Black. A three-judge court including two judges that were appointed by President Trump threw the map out and said it likely violated Section 2 of the Voting Rights Act.
Section 2 prohibits states from election practices based on race that result in the denial or abridgement of the right to vote. Black Alabamians argue that their voting power is diluted by being packed into one of seven districts. Instead of being represented by ~30% of the congressional delegation, their interests are represented by 14%.
The state of Alabama, somewhat perversely, argues that drawing maps that would secure Black voting power would require them to discriminate based on race. This court has not been friendly to voting rights rulings in the past, famously neutering the Voting Rights Act in another case that involved Alabama, Shelby v. Holder. A ruling in favor of the state of Alabama would radically undermine minority representation across the country.
The “independent” legislature argument
There’s a related case out of North Carolina, Moore v. Harper, that deals with partisan gerrymandering, not racial gerrymandering (though in the South and much of the country, that Venn Diagram is close to a circle).
In a nutshell, the North Carolina Supreme Court threw out maps that were drawn by the North Carolina legislature arguing that they were too gerrymandered along partisan lines. At issue is a relatively obscure, and at one point fringe, legal idea known as the independent state legislature theory. In a nutshell, the argument is that state legislatures have ultimate authority over federal elections and that power can’t be checked by state courts or the state executive branch. If SCOTUS rules that way, it would radically redefine election law in the United States.