Anyone/everyone here watch The Handmaid's Tale on Hulu? (If you don't, you're missing out, it's excellent if scary.) You know the scenes that are flashbacks to the before-time, pre-Gilead, when things were incrementally sliding into theocratic fascist dystopia? We're on the cusp of living those flashback times for real thanks in very large part to our extraordinarily corrupt and willfully obtuse Supreme Court.

"Justice" Samuel Alito, third in seniority and first in fascistic ideology, brought us the latest SCOTUS ruling to roll back progress. Utterly ignoring the Reconstruction-era amendments to the Constitution, Alito declared for the Court that states can draw their district maps using racial demographics as their guide and it's just fine, so long as they put forth a "possible" claim that they're not using race as their "primary motivation" in their overtly-partisan redistricting agenda, and if a court rightly says "this is BS and violates the Constitution," just appeal it to the Supreme Court and they'll overturn that.

This is the latest in an apparently ongoing series of rulings SCOTUS has made to gut voting rights in this country and aid the modern Republican party in its efforts to disenfranchise, you know, "those people." In 2013, the Court delivered a ruling written by Chief "Justice" John Roberts that said the Voting Rights Act's key provisions were no longer necessary and struck them down, leading to a new wave of disenfranchisement legislating (the late Justice Antonin Scalia called the Voting Rights Act a “perpetuation of racial entitlement” during that case). In 2019, SCOTUS, in Alito's voice again, declared partisan gerrymandering didn't violate anything and could proceed without interference, placing limits on the challenges brought in the case ruled on this week that were still met.

Justice Elena Kagan delivered brilliant dissenting opinions in more than one of these cases. In the 2019 case, she wrote "If left unchecked, gerrymanders like the ones here may irreparably damage our system of government." She continued:

"The majority’s abdication comes just when courts across the country ... have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong."

Similarly, Alito and company once more ignored the judicial standard of conduct in this week's ruling, specifically the principle that a lower court be overruled only in cases of "clear error." From Kagan's dissent:

"In dismissing [the lower court's] strong case, the majority cherry-picks evidence, ignores credibility findings, misunderstands expert views, and substitutes its own statistical theories. Its opinion gives not a whit of respect to the District Court’s factual findings, thus defying the demands of clear-error review.


"What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a 'possibility' of non-race-based decision-making, and it will be 'dispositive.' And so this 'odious' practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue."

This is just the latest abuse of power for partisan gain by the Roberts Court. It will continue, and continue, and continue until something is done.

We need Democratic majorities in both Houses of Congress and in the White House. Only then will the bad actors perpetuating the ability of this lawless Supreme Court majority be circumvented and corrections can start to be made. Whether that comes in the form of impeachments of Alito and Clarence Thomas or expansion of the Court to 11 or 13 Justices or both or some other measure, the status quo cannot continue.

That way lies Gilead.


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