This Monday, the Supreme Court handed down its ruling in Merrill v. Milligan, blocking a federal court order that would have required the Alabama legislature to redraw its congressional map to ensure it does not dilute the power of Black voters. Although Alabama’s population is 27 percent Black, the Republican-controlled legislature packed many of the state’s Black voters into just one of the state’s seven congressional districts—the only one in which Black voters constitute a majority. By a 5-4 vote, the Court granted Alabama’s request and reinstated the map for the upcoming 2022 election, the primaries of which begin next month.
The opinion itself is a single brief paragraph with no explanation. But a concurrence written by Justice Brett Kavanaugh and joined by Justice Samuel Alito attempts to justify this latest attack on the Voting Rights Act on the grounds that the 2022 midterm election—which will take place nine months from now—is too close for federal courts to get involved. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, and others,” Kavanaugh wrote. The harms associated with allowing an election to take place with a racially gerrymandered map in place seem not to have figured into his calculus.
In a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan blasted the ruling as yet another example of the Court using its shadow docket to “signal or make changes in the law.” Chief Justice John Roberts wrote a separate dissenting opinion, expressing doubt about the underlying Voting Rights Act precedent but emphasizing that the lower court in this case applied it correctly, and that he would deny a stay as a result. It takes a truly remarkable set of facts to get Roberts, a man who despises voting rights more than anything in the world, to disagree with his colleagues on this issue. Thanks to their six-justice supermajority, there is little his meager protestations can do about it.
Kavanaugh, responding to Kagan, insisted that the justices in the majority were not making a decision on the merits, and dismissed her critique of the Court’s shadow docket decisionmaking as “catchy but worn-out rhetoric” and “off target.” For Black Alabamians who just watched the highest court in the country endorse a cynical strategy to dilute the votes of people of color for a full election cycle without any meaningful consequences, his reassurances are probably of little comfort.
Kavanaugh’s reasoning here recalls the Court’s handling of SB8, the Texas anti-choice law banning abortions after six weeks of pregnancy. Last year, when the justices refused to put the law on hold while legal challenges continued, they insisted that it was simply a procedural decision—a claim that credulously ignored the irreparable harm to people forced to carry pregnancies to term in the meantime. The Court’s move essentially nullified the right to abortion care in one of the nation’s largest states, and did so on the shadow docket, which doesn’t even require the justices in the majority to sign their names to the order. In Merrill, they functionally blessed racial gerrymanders with the same generous treatment.
Incredibly, Monday’s outcome may not prove to be Merrill v. Milligan’s worst consequence. The Court noted that it had decided to grant certiorari to decide the merits of the case, which means it will hear briefing and oral argument before deciding, likely sometime next year, whether Alabama’s map does indeed violate the Constitution. That the Court has agreed to take seriously a state’s claim that considering the race of voters during the redistricting process is unconstitutional is, to say the least, troubling. The conservative legal movement has spent years chipping away at the protections of the Voting Rights Act, emboldened by far-right Supreme Court justices eager to help their fellow Republicans win elections. The eventual ruling in Merrill may be, for all intents and purposes, the end of it.
