Before the politics of white grievance wore a red hat, it wore a black robe.
In 2006, under unified Republican control of the federal government, Congress reauthorized the Voting Rights Act of 1965 in a nearly unanimous, bipartisan vote. As recently as fifteen years ago, for politicians who wanted to keep their jobs, voting against the VRA was almost unthinkable.
Last month, my colleagues and I in the House passed a bill to restore the Voting Rights Act, which in the years since has been dismantled by the Supreme Court’s right-wing majority in decision after decision. Not a single Republican voted for it—not even supposed “moderates” like Liz Cheney and Adam Kinzinger.
Why? Because in the past decade and a half, the Roberts Court has once again normalized racism in our public sphere. To understand how, look no further than its 2013 decision to strike down the heart of the VRA in Shelby County v. Holder—the main reason we had to vote on a new Voting Rights Act in the first place.
In Shelby County, the Supreme Court’s five conservatives struck down the VRA’s preclearance provision, which required states and localities with well-documented histories of voter suppression to get approval from the Department of Justice before changing their voting laws. The story that Chief Justice John Roberts told in his majority opinion was a disingenuous one: that “things have changed dramatically” in the South since the VRA’s enactment, and that the protections of the VRA were therefore no longer necessary.
But Justice Antonin Scalia, who before his death represented the basest impulses of the Republican Party, was not shy about the work the Court was doing for the conservative movement. During oral argument, Scalia openly derided the VRA’s protections as a “racial entitlement”—an unearned handout to undeserving voters of color. To Scalia, the very fact that Congress reauthorized the VRA, unanimously in the Senate and nearly unanimously in the House, meant that the Court had a duty to dismantle it. “This is not the kind of question you can leave to Congress,” he declared, because voters and their representatives seemed determined to protect our multiracial democracy “in perpetuity.”
“Even the name of it is wonderful,” Scalia scoffed. “The ‘Voting Rights Act.’ Who is going to vote against that in the future?”
In the years since, the Court has compounded the work it started in Shelby County, insulating racist politicians from accountability by making it harder for people of color to vote. In its Husted v. A. Philip Randolph Institute ruling in 2018, the Court allowed states to purge voter rolls using racist criteria that disproportionately punished Black and brown voters. That same year in Abbott v. Perez, the Court made it all but impossible to prove the racially discriminatory intent behind laws designed to suppress the vote—animus that’s obvious to anyone who isn’t a member of the Federalist Society. And some two months ago in Brnovich v. Democratic National Committee, the Court returned to finish off what was left of the VRA, again insisting that nonexistent voter fraud was the real threat, and racist voter suppression a myth, evidence be damned.
In its voting rights cases, the Supreme Court did what Congress couldn’t: adopt a politically toxic position for which politicians would have been punished at the polls. And the Court’s majority told a powerful story about why it had to do so, one that has permeated so much of the Roberts Court’s jurisprudence. A story that discrimination against people of color, and especially against Black people, is over. That voter fraud is the real threat to our democracy. And that laws disenfranchising people of color are not just constitutional, but necessary. It was an intoxicating story for a nation recovering from white supremacy—a story in which the Civil Rights Movement had been so successful that it needed to be reined in.
As Roberts and his colleagues have normalized this insidious racism, too many Democrats have remained deferential to the Court, fearful of “politicizing” an institution that, in reality, has always been political, and has led the charge in right-wing, partisan warfare. We can’t delude ourselves any longer.
Thankfully, the American people know what’s at stake. In the days following my introduction of the Judiciary Act with Reps. Hank Johnson and Jerrold Nadler, which would restore balance to the Court by adding four seats, a Data for Progress poll showed support among 75 percent of Democrats and a plurality—47 percent—of likely voters. Everyday people know that the far-right, 6-3 majority on the Court is an existential threat to multiracial democracy. Now, Congress must treat it as such.
As an openly gay, Black American, I don’t have the luxury of standing by idly as this Court takes a hatchet to my civil rights, and the civil rights of my friends and family members.
The Roberts Court’s jurisprudence is only the latest illustration of one of this country’s oldest truths: Racism cannot be defeated through reason, facts, or logic. It must be disempowered. And there is only one way to disempower the radical, right-wing Justices in this Court’s majority: return them to their rightful place in the minority.