I have a piece up at Balls and Strikes about the dangers of the Republican Supreme Court simply ignoring the unambiguous text of statutes when they establish policy choices Republican elites don’t like. While ambiguous statutory language — unintentional or otherwise — that empowers courts is a real thing, NFIB v. OSHA is not such a case. The choice made by Congress was clear — the Court ignored it because it didn’t like the results, and applied the new Republican canon that italicizing words makes them mean things different than what they were universally understood to mean before or since.
Another critical example of this is Brnovich v. DNC, Shelby County‘s equally evil twin:
It would be nice to think that this bad-faith reading of a statute stands out as particularly egregious. It does not. Consider the Republican majority’s recent treatment of the Voting Rights Act, which is perhaps even more indefensible. Brnovich v. DNC, decided last summer, is a case about amendments to the VRA when Congress reauthorized the law in 1982. Two years earlier, a plurality of the Supreme Court had held that finding illegal discrimination under the VRA required a showing of discriminatory intent—a requirement found nowhere in the statutory text. The Reagan administration, led by a fanatical opponent of voting rights named John Roberts, urged Congress to codify this new standard.
The right’s motivations were obvious: Requiring proof of discriminatory intent is the most important tool of reactionaries seeking to undermine nondiscrimination law, because intent is generally very difficult to prove unless the relevant public officials are dumb enough to admit it. (Or, in the case of the Roberts Court where Trump is involved, even when they are.) Historically, this high bar has essentially been a message to public officials that they are free to discriminate, as long as they can find ways to do it without explicitly mentioning race.
Congress, however, rejected the arguments made by Roberts and the other Reaganites who wanted the VRA disemboweled. Lawmakers did not only decline to codify a requirement to show intent; they explicitly made illegal practices that gave any group “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” irrespective of whether anyone’s intent caused this disparate impact.
In Brnovich, Roberts had the chance as Chief Justice of the United States to win the fight he’d lost four decades earlier. Voting rights activists challenged two Arizona election laws that had a disparate impact on voters of color. The plaintiffs presented strong evidence of discriminatory impact: For example, under a law that invalidated ballots cast in the wrong precinct, voters of color saw their votes thrown out at higher rates than white voters. A ban on third-party absentee ballot collecting, meanwhile, resulted in measurably lower voting access for Native Arizonans living in remote areas of the state.
But the Court’s five Republican justices ignored both the clear language and purpose of the law, erecting numerous extratextual bars that make it all but impossible to win a case like this without showing discriminatory intent. As Justice Elena Kagan wrote in an unanswerable dissent, Justice Samuel Alito’s opinion for the Court was a “law-free zone,” basing its holding on “on a list of mostly made-up factors.” (Among them: The majority invented a rule that restrictions on the vote that existed when the Voting Rights Act was enacted should be presumptively constitutional, which, if true, would sort of obviate the purpose of a Voting Rights Act in the first place.)
Sound familiar? In essence, a six-justice conservative supermajority “interpreted” the Voting Rights Act as if Roberts had prevailed in 1982, when in fact Congress had repudiated his vision for what the law should look like. The same is true of the Court’s opinion in NFIB: None of the “rules” are found in the text of the statute. They’re simply meant to frustrate the will of Congress whenever Congress does something that leads to results the justices don’t like.
NFIB and Brnovich are especially ominous for American democracy because they leave Congress with no outs. Courts that willfully ignore the text and purpose of major statutes are an existential threat to democratic self-rule, because even if majorities can surmount the formidable obstacles to legislating, Republican-controlled courts can simply rewrite the law to suit their own preferences. In his concurrence in NFIB, Justice Gorsuch claimed to be standing up for “the people’s elected representatives in Congress.” In reality, the Court has found another way to consolidate power in itself.
The 2014 and 2016 elections are quite simply bells that can’t be unrung, and it’s just a question of how much of the damage can ever be mitigated.