Robert Reich: The Supreme Court’s Republican Partisan Hacks – OpEd

The Supreme Court decision announced in Alexander vs. State Conference of the South Carolina NAACP — written by Samuel Alito, and joined by the five other Republican appointees on the court — is so disturbing that you need to know what happened. 

It’s not just that the Supreme Court cleared the way for South Carolina to keep using a congressional map that a lower court had found to be an unconstitutional racial gerrymander. 

The real news is that Alito and the five other Republican justices have made it much harder, if not impossible, to challenge racial gerrymandering. 

The Constitution’s equal protection clause bars racial gerrymandering but not partisan gerrymandering. In this case, the lower court had found that South Carolina’s redistricting map — which moved Black voters from one district to another to bolster the Republican majority — was racially gerrymandered. It caused the “bleaching of African American voters” from a district and “exiled” thousands of Black voters to carve out a district safer for a white Republican incumbent. 

But Alito and his right-wing cohort say this wasn’t racial gerrymandering. Why not? Because South Carolina says it wasn’t, and courts must defer to lawmakers’ assertions that their goal in redistricting is partisan rather than racial. “We start with a presumption that the legislature acted in good faith,” Alito wrote. “We should not be quick to hurl such accusations [of racial discrimination] at the political branches.”

Hello? The whole point of the federal courts stopping state racial discrimination is notto assume state lawmakers acted in “good faith.” How could the Supreme Court have reversed school desegregation in Brown vs. Board of Education, or even upheld the Civil Rights and Voting Rights Acts, without assuming that lawmakers were motivated by racial discrimination, regardless of what they said? 

Under Alito’s logic, the courts could rarely if ever strike down racially motivated state laws as long as state lawmakers say they weren’t racially motivated. 

Justice Elena Kagan, in a dissenting opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, accuses the majority of making it all but impossible to challenge racial gerrymanders. The Supreme Court should “respect the plausible — no, the more than plausible — findings of the district court that the state engaged in race-based districting.”

She’s right, of course. But being right isn’t enough. The six Republican appointees have hijacked the Supreme Court for the Republican Party. 

So what do we do? 

If and when Democrats gain back control over the House and Senate, they must pass legislation setting term limits for Supreme Court justices. 

Article III of the Constitution gives judges lifetime appointments (conditional upon their “good Behavior”) but doesn’t specifically give Supreme Court justices lifetime appointments. So Congress can enact a law requiring Supreme Court justices to move to lower federal courts after a set number of years, thereby opening their seats to new justices. 

A second reform: I used to be against efforts to expand the size of the Supreme Court, but I changed my mind after the Republican Senate refused to consider President Obama’s nominee — alleging the nomination was made too close to the 2016 election — but then rushed through Trump’s third nominee on the eve of the 2020 election. If Democrats regain control of the Senate at a time when there’s a Democrat in the White House, they should expand the size of the court so it reflects the values of America. 

Third: Congress must enact an enforceable code of ethics for the Supreme Court. 

Until such reforms, the six right-wing Republican members of the court are unconstrained. The Roberts Supreme Court is the worst since the shameful days of Roger Taney’s Supreme Court. Alito, Thomas, Roberts, and the three Trump appointees are Republican partisan hacks.

• This article was published at Robert Reich’s Substack