The Supreme Court Has Invented a Right to Discriminate

This week, the Roberts Court made clear that when it comes to drawing congressional districts, Black voters have no rights that anyone is bound to respect.For years, Alabama, where a quarter of the population is Black, had defied federal court orders, including one reaffirmed by the Supreme Court itself in 2023, to create a second majority- or plurality-Black congressional district. Alabama’s reasoning for not doing so was simple: Its Republican legislators didn’t want to, and they didn’t believe the Roberts Court would make them. “The Supreme Court ruling was 5–4,” the state House Speaker Nathaniel Ledbetter said about the 2023 decision. “So there’s just one judge that needed to see something different.”The state was making a gamble that the Roberts Court was more partisan than sincere. And it paid off: On Tuesday, the Court allowed Alabama to proceed with a map that diminishes Black voting power to the advantage of Republicans. For all the Court’s pretenses—all its insistence on the rule of law, precedent, and good faith—many critics and supporters of the Roberts Court see the institution as an appendage of the Republican Party. The only thing that distinguishes the critics from the supporters is whether they think that is a good thing.“Alabama willfully drew a map that flouted the District Court’s preliminary injunction and hoped that this Court would eventually see things its way,” Justice Sonia Sotomayor wrote in her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “After today, it is hard to call Alabama’s cynical gambit anything other than a success, and the Court’s rewarding of Alabama’s behavior anything other than a blow to the rule of law.”The majority opinion was unsigned. In it, the judges argued that the lower court had “failed to follow our instruction” in ordering the creation of the new district. This was a reference to the April decision in Louisiana v Callais, in which Justice Samuel Alito announced that “race and polit