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Brigid Bergin: This is Brigid Bergin filling in for Brian Lehrer on WNYC today. As we mentioned last week, this is Supreme Court watching season as they try to issue opinions in all the remaining cases of this term by the end of the month. The court issued four opinions today, one of which could have a big impact going forward and in a very surprising way. In the voting rights case, Allen v. Milligan, the court agreed that Alabama's congressional district maps violated the Voting Rights Act. We're joined once again by Elie Mystal, justice correspondent for The Nation and author of Allow Me to Retort: A Black Guy's Guide to the Constitution, who has agreed to keep watch with this month. Welcome back, Elie.
Elie Mystal: Hey, Brigid. I am still picking my jaw up off the floor.
Brigid Bergin: [laughs] Well, I think you told Brian last week that June is the worst month of your life because you have to read all these lousy opinions, but do you feel a little better about it today?
Elie Mystal: Indeed. I might go outside. Well, not outside in this weather, but you know what I mean. I might have some ice cream today. That's how shocked I was. Look, the bottom line, Brigid, is that John Roberts has been an enemy of voting rights for Black people for his entire career. At every point as a lawyer and a judge, he has voted to weaken or eviscerate the Voting Rights Act. He's never voted to affirm it until today, until 10:00, 11:00 this morning, when he and Brett Kavanaugh cited with the three liberal judges to uphold Section 2 of the Voting Rights Act, and that was not something that I expected.
Brigid Bergin: Wow. Listeners, if you have a question about today's voting rights decision or other Supreme Court news for my guest, Elie Mystal, we can take a call or two. The number's 212-433-WNYC. That's 212-433-9692. Now, Elie, remind us what happened with the maps in Alabama that resulted in this case getting to court in the first place.
Elie Mystal: Okay, so after the 2020 census, Alabama redrew its maps. Alabama has seven congressional districts. About 14% of the population is Black. For those playing math along at home, 14% is two of seven. It would make sense that there would be two majority-minority districts in Alabama, but the maps that they came back with only had one. They basically broke up a large distinct section of the state that has a lot of Black voters in it.
They broke it up amongst the other six districts to make sure that Alabama would only have one majority-minority district instead of two. They were sued. That case went to the Supreme Court. The Supreme Court basically allowed Alabama to use its racially-biased maps in the previous election. In the 2022 midterm elections, Alabama was allowed to use this map. Today, the court said that, actually, Alabama's maps could credibly be sued under Section 2 of the Voting Rights Act as racially discriminatory, and that those maps are invalid.
Kind of brings up the question of, to quote Billy Madison, "information that could have been brought to my attention yesterday," right? Kind of brings up the question of why the court allowed Alabama to use the racist maps in the last election. Okay, they did that. Now, they're saying that Alabama's maps are suspect. That is a shocking decision given who made it. Obviously, I expected Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to uphold the Voting Rights Act, but I didn't expect it from Kavanaugh. I certainly didn't expect it from Roberts who, again, has been an enemy on this issue for his entire career.
Brigid Bergin: How worried were you when you saw that Chief Justice Roberts was writing the majority opinion in this case?
Elie Mystal: Well, I always assumed he would because, again, he has a thing against Black people voting. I always assumed that he would keep the case for himself. It would be 6-3 to eviscerate Section 2 of the Voting Rights Act. Let's be clear. Section 2 of the Voting Rights Act is the part of the Voting Rights Act that allows people to sue for racial discrimination in voting under the 15th Amendment, right?
Without Section 2, the 15th Amendment itself, the amendment that prohibits racial discrimination in voting, without Section 2 of the Voting Rights Act, the 15th Amendment itself becomes relatively inoperative. The challenge, the argument from Alabama, was to straight-up rule Section 2 unconstitutional because of federalism because it involves the federal government interfering with state's rights.
That was the core argument here. They had some other arguments about why their map should be upheld even under Section 2, but the core of it was just to throw Section 2 add on its ear. That's what I thought could happen. I thought that either they would completely throw Section 2 out or they would weaken it so strongly that it basically didn't matter anymore. To go from that expectation to today, where the way that I've put it to some of my friends is that this is a very live-to-fight-another-day decision.
Kavanaugh's concurrence, for instance, suggested that Section 2 could be attacked in the future in a different way. Again, Roberts is not generally a fan of Voting Rights Act or Section 2, so it's still under threat. This is a live-to-fight-another-day. This Section 2 still exists. That is a huge victory for voting rights advocates across the country because we really thought this was going to be taken away today.
Brigid Bergin: I want to go to the phones because Elliot in Manhattanville has a question, speaking of living to fight another day, that speaks to some of the decisions we haven't heard. Elliot, I'll let you ask the question, but is there anything we can infer from today's decision that might speak to how some other decisions might unfold? Elliot, go ahead.
Elliot: Thank you. Of course, I'm not taking anything away from the importance of today's opinion, but I know from reading the internet that followers of the court seem to like to project and predict. There's a pair of cases about the use of race in admissions and colleges. One is a public university and the other is Harvard University. I was curious to know whether you think that any of the little tea leaves in today's several opinions might give some indication about what might happen in those cases, and keeping in mind that there are only eight justices that will rule on the Harvard case.
Elie Mystal: Look, my crystal ball might be crack, but it ain't broke. I still fully expect the Supreme Court to overturn over affirmative action and race consciousness in admissions later this month. I think that's going to be one of the last cases of the term. I think it's going to come out in the last week of June. I think it's going to be 6-3 and I think they will overturn it. I think Clarence Thomas will write it. Nothing about today has changed my opinion on that.
In fact, if you really want me to get into the tea leaves, Brett Kavanaugh's concurrence, the way that he suggests that the Voting Rights Act could be attacked in the future is by bringing up timeliness, basically saying that Congress cannot indefinitely force states to be not racist. I'm paraphrasing there, but that's the upshot of Kavanaugh's concurrence. That argument that Kavanaugh makes here in the voting rights case is exactly the argument that the conservatives are going to make in the affirmative action case.
It's going to be, "Well, at one point, maybe affirmative action was necessary, but now, racism has been conquered, and so we don't need it anymore." That is literally going to be one of the arguments that we hear from the Supreme Court. I think Kavanaugh was previewing that a little bit in this concurrence here in the voting rights case. I still think very bad decisions are coming in the future, but I also thought this one was going to be very bad, and it wasn't. I am surprised and shocked this was okay.
Brigid Bergin: Elie, I want to make sure you get your ice cream today. I could ask you so many more questions about this like, "Why did the name of the case change?" We're going to have to leave it there for today. Thank you to Elie Mystal, justice correspondent for The Nation and author of Allow Me to Retort: A Black Guy's Guide to the Constitution. The next scheduled opinion day is in one week, and so maybe we'll hear from you again then. Thank you as always.
Elie Mystal: Thanks a lot, Brigid.
Brigid Bergin: I'm Brigid Bergin and this is The Brian Lehrer Show on WNYC. Thanks so much for listening. Talk to you tomorrow.
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