WASHINGTON - Whose rights matter? As the Supreme Court grapples with when to intervene in an ongoing case and when to hold back, it slings around a lot of impartial-sounding legal jargon: “likelihood of success on the merits,” “balance of equities,” “irreparable harm.” But the fundamental question boils down to the justices’ conflicting visions of whose rights they deem worthy of protection -- and whose they are willing to see violated.
Time after time, in case after case, from capital punishment to voting, from pandemic restrictions to abortion, the conservative justices’ priorities manifest themselves. They leap to act on behalf of state officials who might be inconvenienced by having to wait for a full ruling; they are similarly solicitous of religious individuals who claim that their constitutional protections are being infringed. Meanwhile, inmates facing execution, women seeking abortions, minority voters challenging voting restrictions -- their arguments for urgent intervention are routinely discounted and rejected.
This judicial double standard was once again on flagrant display Monday as the court, splitting 5 to 4, intervened in an Alabama redistricting case. African Americans, who account for 27% of Alabama residents, constitute a majority in just one of its seven congressional districts. A lower-court panel found that the redrawn districts violate the Voting Rights Act.
The justices agreed to review that ruling -- fair enough. But in the meantime, the conservative majority stepped in to put on hold the lower court’s order that the state draw a new map, in time for the midterm elections, including a second majority-Black district.
Whose rights matter? In this case, the conservative majority airily privileged the convenience of state legislators over the ability of Black voters to secure fair representation -- all while pretending it was simply following the rules rather than putting a heavy thumb on the scale for one side.
“Pretending” might overstate matters, since the majority did not explain its action. That was left to a concurrence from Justice Brett M. Kavanaugh. Joined by Justice Samuel A. Alito Jr., Kavanaugh insisted that blocking the lower-court order was a simple matter of maintaining regular judicial process, letting the case be decided after full briefing and argument. He invoked what he described as a “bedrock tenet of election law” -- that courts shouldn’t “swoop in and re-do a State’s election laws in the period close to an election.”
Except that Alabama’s primary isn’t until late May. Absentee voting will start on March 30 -- but that leaves plenty of time for the legislature to redraw a few districts. It took just five days to produce the new map. What’s missing here is any expression -- any hint -- of concern for the countervailing rights of Black voters. Inconvenience to state officials who have to scramble to redraw maps or candidates who aren’t sure about the contours of their districts? Huge. Infringement on the ability of Black residents to have their political voices fully heard? Not so much.
Alabama has an ugly history of voting discrimination. Black candidates have rarely succeeded in winning election, especially to statewide and federal office. This case involves a challenge under the Voting Rights Act, which is supposed to protect the rights of minority voters. So you might think those rights would be given some consideration -- especially since the court intervening to grant a stay is supposed to be an “extraordinary” action.
It would be bad enough if the court’s skewed approach to dispensing justice were limited to voting rights cases. It’s not.
Whose rights matter? Not the rights of women seeking abortions in Texas. The court has stood by for five months, allowing the flagrantly unconstitutional Texas law prohibiting abortion after six weeks to remain in effect.
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Ruth Marcus’ email address is email@example.com.