Sunday, August 20, 2023

Power Politics: Just Ignore The Supreme Court

The last time this (nullification) was actually done it foreshadowed the American Civil War.

The latest scholarship estimates the death toll of that conflict at just over 3% of the U.S. population.
The equivalent percentage of today's population is 9.8 million people.

From Washington Monthly, August 14, 2023:

The precedent-smashing, highly political Roberts Court is likely to trigger outright defiance by the left and right. Just look at Alabama’s failure to comply with a recent Court ruling.   

“In the name of the greatest people that have ever trod this earth,” Alabama Governor George Wallace proclaimed in his 1963 inaugural address at the state capitol in Montgomery, the first seat of the Confederacy, “I draw the line in the dust and toss the gauntlet before the feet of tyranny … and I say … segregation now … segregation tomorrow … segregation forever.” True to his word, Wallace famously stood in the door of the University of Alabama six months later to block a federal court order that the university admit two Black students.  

That effort failed. Wallace stood in the doorway for the sake of the cameras, but under the watchful eye of National Guard troops federalized by President John Kennedy and with Deputy U.S. Attorney General Nicholas Katzenbach standing feet away, Wallace stepped aside, and the students, including Vivian Malone (later the sister-in-law of Attorney General Eric Holder), were enrolled that day. Despite his retreat, Wallace became wildly popular in the state, served four terms as governor (five, if you count the term his wife, Lurleen, was elected to), and made two serious runs for President. 

As the Brennan Center’s Kareem Crayton wryly observed, Alabama “has a long tradition of defying court orders.” The state is now up to the old Wallace trick—and then some. By balking at producing a redistricting plan that can pass judicial muster, its legislature has refused to comply with a district court order and a Supreme Court Voting Rights Act decision in what may be a foretaste of future crises on the left and right. States on both sides of the red-blue divide are growing querulous about Supreme Court rulings. Even though it is now dominated by a radical-right majority, resistance to its precedent-shattering decisions seems at least as likely to come from the right as from the left. In fact, state defiance, in general, has a history that stretches back almost to the Founding.  

The Court may even face something not seen since the Civil War—defiance of a President of the United States.  

Let’s begin with the states; they are raring to go. Texas, for example, seems to regard Supreme Court decisions as mild suggestions. In 2021, its SB 8 abortion bill didn’t merely test the boundaries of Roe v. Wade but successfully negated it, even though the landmark 1973 ruling was affirmed by the Court as recently as 2016. The Court meekly allowed that bill to take effect. Months later, after the Court’s majority issued its opinion in Dobbs v. Jackson Women’s Health Organization and scrapped Roe, Texas Attorney General Ken Paxton invited state officials to begin prosecuting LGBTQ persons for “sodomy” and refusing same-sex marriage licenses (both forbidden by the Court). I am surely not the only one wondering what will happen if a federal court orders Governor Greg Abbott to remove the deadly pontoons he uses to block the Rio Grande.  

Since 2016, Republicans’ shameless political meddling with the Court—the blockade of the Merrick Garland nomination, the issuance of Donald Trump’s list of judges, and his promise that his judges would “automatically” overturn—were radical events. Those and what followed made the Court a different institution than it had been since at least the 1930s when the “switch in time” ended its vendetta against the New Deal. Simply put, it is not acting like a court; it will not be treated indefinitely by friend or foe as if it were one. 

The Alabama imbroglio partly arises from right-wing outrage that the Court acted like a court. Last June, it shocked its conservative creators by ruling 5-4, in a case called Allen v. Milligan, that Alabama’s legislature had violated Section 2 of the Voting Rights Act of 1965. The violation, a lower federal court (two of its three judges appointed by Trump) found, was drawing a district map that denied Alabama’s Black voters—a quarter of the population—any chance of electing or influencing more than one member of the House. (Section 2 is violated if racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”)  In February, Alabama—and legal conservatives generally—were confident that the Supreme Court would erase the lower-court opinion when the Court, without explanation, had issued a “stay” of the lower court ruling. 

But, as the British tabloids say, SHOCK HORROR! After hearing the case, the Court held, 5-4, that the Alabama plan did violate Section 2. (The lineup was Roberts, joined by Justices Sotomayor, Kagan, Kavanaugh (in part), and Jackson, with Justices Thomas, Alito, Gorsuch, and Barrett in outraged dissent.) Roberts’s vote cannot be explained by his view of § 2, to which he has been resolutely hostile since his first days as a junior lawyer in the Reagan Justice Department. It seems inescapable that it arose from his alarm at the lawlessness of Alabama’s request, in effect, to scrap the Act altogether. The shock of that opinion continues to reverberate as the lower courts must now apply the Court’s ruling to redistricting challenges in other southern states, and the outcome may even affect control of the House in 2024. 

The three-judge panel ordered a new map that would include another majority-Black district or something “close to it.” The legislature produced its new map last month: But its additional minority district was only 42 percent Black—while it reduced the Black voting age percentage of the existing majority-Black district from 55 to 51. “In my heart of hearts,” the Republican sponsor of the new map told the state House, he realio trulio believes the map complies with the Court’s decision.  

Well, I am no judge of hearts, but it realio trulio doesn’t.  

Some observers suggest that statehouse Republicans feared primary challenges if they voted for a map with two majority-Black districts and offered this one knowing the three-judge court would reject it and draw its own. But there’s another possibility. The Alabama Political Reporter, an established website covering state politics, suggests that the new map is part of a scheme to evade the Court’s decision altogether.  

Here’s the plan, the Reporter said: The three-judge panel will almost certainly reject the map—and the state will then appeal to the Supreme Court again. The Political Reporter wrote that “sources said that Republican lawmakers believe their D.C. connections have ‘intelligence’ that Associate Supreme Court Justice Brett Kavanaugh, who voted with the majority in Milligan, is open to rehearing the case on its merits.” 

There’s a hideous plausibility to this idea. Read carefully, all the opinion did, in this case, was uphold a preliminary injunction by the three-judge court. This meant the challenge to Alabama’s map was “likely to succeed.” But the Court has gone both ways on this question—the stay issued in February was supposed to signal “likelihood of success” for the state. The likelihood calculus had shifted; could it shift again?  

In a concurrence, Kavanaugh echoed a concern by Justice Clarence Thomas in dissent—that “the authority to conduct race-based redistricting (under the Voting Rights Act) cannot extend indefinitely into the future.” In other words, Section 2 was outmoded and should be gutted. That argument, Kavanaugh noted pointedly, was not before the Court in the Alabama case.  

Apparently, someone in Washington thinks Kavanaugh might flip if a new appeal presented the “indefiniteness” issue.  

In a hearing Monday in front of the three-judge panel, Alabama appeared to be following that script. As reported by Kyle Whitmire of, the state basically told the judges that it just couldn’t see its way clear to doing what they wanted, and thus suggested that the entire process start again—with the issue of § 2 in play again. At the hearing’s end, one of the judges told Alabama Solicitor General Edmund LaCour, “What I’m hearing is the state of Alabama deliberately chose to disregard the court.”  

The question seems to be whether the Supreme Court will let Alabama back it off. The answer is by no means clear. 

Defiance of the Court goes back long before George Wallace. In 1832 in Worcester v. Georgia, Chief Justice John Marshall held that Georgia could not extend its laws into Cherokee Nation territory. The state (and President Andrew Jackson’s administration) ignored the ruling, and the Cherokees were expelled to the Indian Territory (now Oklahoma) in the crime now known as the “Trail of Tears.”....


And the "Power Politics"? The situation brings to mind the realpolitik supposedly expressed by Joe Stalin, via World Histories:

....The earliest mention that I have found of this question is from Time: The Weekly Newsmagazine (New York City, N.Y.) of Monday 27th December 1943:

Prime Minister Jan Christiaan Smuts of South Africa set the week’s best Teheran [note 1] story in motion. His version: “Winston Churchill [note 2] suggested to Stalin the possibility of the Pope’s being associated with some of the decisions taken. ‘The Pope  [note 3],’ said Stalin thoughtfully. ‘The Pope. How many divisions has he?’”

The Supreme Court has no military divisions to enforce its rulings and depends on the Executive Branch to faithfully execute the law.

Recently, a related argument August 12:

Law Professors Tell President Biden To Ignore Supreme Court Rulings He Doesn't Agree With