Home / General / “I mean, the heat he brought down is murder! We had a police department who was cooperative. He’s pissed them off so much now that nobody can make a move anymore.”

“I mean, the heat he brought down is murder! We had a police department who was cooperative. He’s pissed them off so much now that nobody can make a move anymore.”

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Chief-Justice-John-Roberts

Remember when John Roberts said that racial discrimination in voting was no longer an issue in the United States, and therefore the Fifteenth Amendment no longer really had a section 2 in it? That…made no sense at all on its face. But starting before the ink on the slip opinion was dry Republican statehouses did as much as the possibly could to make Roberts’s opinion look exactly as stupid as it was. The result has been traditionally deferential federal courts in full revolt against vote suppression measures, and Anthony Kennedy seems to be slowly backing away from the Party of Trump tire fire as well:

What’s striking about this decision is that the Fifth Circuit remains a conservative court with a majority of Republican nominees. Texas’s law was so egregious it couldn’t survive even the circuit court venue most favorable to Republicans. What this indicates is that legislatures like North Carolina, Texas, and Wisconsin have overreached. In the wake of Crawford, states could probably have continued to get away with more subtle forms of suppression. But omnibus bills that made a mockery of Chief Justice John Roberts’s blithe assertion in Shelby County that racial discrimination in voting was no longer an issue—and that therefore Congress had lost some of its explicit constitutional authority to address it—are another story.

When states passed these laws the Supreme Court that decided Shelby County was still in place, and Republican decision-makers surely expected the laws to survive Supreme Court review no matter what happened in lower courts. Scalia’s death, however, changed everything. There is no chance of a Supreme Court majority to overrule any of these decisions. And in light of the Fifth Circuit’s decision, there’s a real possibility that even with an eight-person Court there might be an outright majority to sustain them.

But this kind of overreach could have even broader consequences. Earlier this year, Anthony Kennedy voted to strike down an abortion regulation for the first time since 1992, presumably reacting to what he perceived as overreach by the Texas legislature. It’s possible that something similar will happen with voting rights. Kennedy seems to be increasingly dubious about the direction the Republican Party has taken, notably on race. In the same week he became the swing vote to strike down Texas’s anti-abortion law, he voted to uphold the state’s university affirmative action program, the first time he had ever found an affirmative action program constitutional.

Perhaps even more importantly, last year Kennedy provided a fifth vote to hold that the Fair Housing Act allows courts to consider disparate impact on racial minorities (as opposed to being limited to intentional discrimination, which is much more difficult to prove). The case suggested that he’s likely to take a dim view of the ambitious vote suppression schemes Republican legislatures keep passing.

Of course, if Hillary Clinton wins the election and can get a replacement for Scalia confirmed, Kennedy’s vote will be moot. Not only would this mean five certain votes to strike down attacks on voting, but also that the outrageous Shelby County decision would almost certainly be overruled as soon as an appropriate case comes to the Court. If Hillary Clinton defeats Donald Trump and Republicans fail to hold the Senate, it’s going to be much harder for the party that nominated Trump to retain power by keeping racial minorities from the polls.

I certainly don’t mean to suggest that the struggle over voting rights is close to over. Kennedy is an outlier among contemporary Republicans, and I’m sure Roberts himself (let alone Alito or Thomas) sees nothing wrong with how states acted after Shelby County. But if Clinton can get a couple nominees confirmed, Republican vote suppression tactics are going to get a lot harder for state and local governments to execute.

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