Harvard Law Professor SOUNDS ALARM on Roberts COURT!!!
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Quick Read
Summary
Takeaways
- ❖Chief Justice Roberts' legacy will be significantly defined by the Supreme Court's role in the 'destruction of the Voting Rights Act,' starting with *Shelby County* and continuing with *Louisiana v. Cala*.
- ❖The Court's decision in *Louisiana v. Cala* effectively allows racial gerrymandering by permitting it to be redescribed as partisan gerrymandering, despite its historical purpose to prevent racial discrimination in districting.
- ❖Roberts' actions are seen as judicial activism, contradicting his stated philosophy of being an 'umpire' calling balls and strikes, particularly when overturning clear congressional intent.
- ❖The 'major questions doctrine,' used by Roberts to curb executive branch activism, is ironically contrasted with the Court's own activist role in reinterpreting the Voting Rights Act.
- ❖Partisan gerrymandering is identified as a deeper problem that the Supreme Court has refused to address, despite its undermining of the 'one person, one vote' principle.
- ❖Professor Feldman argues that while the current Supreme Court is problematic, weakening the institution itself would be detrimental to progressives, as the courts are often the last resort for protecting individual liberties when other branches fail.
Insights
1Roberts' Legacy: Dismantling the Voting Rights Act
Chief Justice John Roberts' long-term legacy will be significantly shaped by his role in weakening the Voting Rights Act. This began with the 2013 *Shelby County* decision, which he authored, ending the practice of pre-clearance for districts in states with a history of racial discrimination. More recently, in *Louisiana v. Cala*, Roberts again wrote the opinion, effectively allowing states to engage in racial gerrymandering by labeling it as partisan gerrymandering, thereby circumventing the Act's intent to prevent the elimination of majority-minority districts. This is seen as a complete reversal of the Act's original purpose and understanding.
Feldman states, 'the main thing that's happened is we've seen the second step in what's fair to call the destruction of the Voting Rights Act... he started um back more than a decade ago when the court in an opinion that he wrote in a case called Shelby County ended the practice of pre-clance... And then most recently in the Louisiana against Cala case, he again wrote the opinion uh this time effectively saying that if you do a racial gerrymander, but you call it a partisan gerrymander... you're protected.'
2Judicial Activism Under the Guise of Restraint
Despite Chief Justice Roberts' public commitment to judicial restraint—famously describing judges as 'umpires calling balls and strikes'—his actions regarding the Voting Rights Act are portrayed as judicial activism. The Court has reinterpreted a clear, repeatedly re-passed law in a way that contradicts its established meaning for over 60 years. This selective application of judicial philosophy is further highlighted by the 'major questions doctrine,' where Roberts expresses skepticism about executive branch overreach but the Court itself is actively subverting congressional intent.
Feldman notes, 'Robert's what he wants to be in his obituary... is the thing he said when he was up for confirmation, which he said, 'I'm just an empire and we're just the calling balls and strikes.'... But this is a law passed by Congress, repassed multiple times by Congress, couldn't be clearer that this is what it means. And he flipped it and he did it twice. So that's a deviation from his own supposed principles.'
3The Supreme Court as the Last Resort for Democracy
Professor Feldman argues that despite its current conservative majority and controversial rulings, the Supreme Court remains a critical institution for protecting individual liberties and ensuring the functioning of democracy, especially when Congress and the presidency are unable or unwilling to act. He points to historical instances where the Court advanced civil rights (e.g., *Brown v. Board of Education*, one person, one vote, gay rights) and recent cases where lower courts, under the Supreme Court's ultimate authority, have limited executive overreach. Therefore, the focus should be on changing the Court's composition rather than weakening its institutional power.
Feldman asserts, 'We need the Supreme Court not because the Supreme Court is so great but because there's no one else in the system to do the job of protecting individual liberties and assuring that democracy functions well.' He adds, 'Congress isn't going to fix these problems. The president's not going to fix these problems. It's the court or nothing.'
Bottom Line
The current Supreme Court's actions are creating a 'race to the bottom' among states to engage in more partisan gerrymandering, further eroding the core idea of democracy.
This competitive gerrymandering could lead to even less representative governments at the state and federal levels, making it harder for the people's will to be reflected in policy and potentially increasing public disgust with the political process.
This widespread public disgust might eventually create enough political pressure for Congress to pass a national ban on partisan gerrymandering, which Professor Feldman believes the Supreme Court would likely uphold, offering a potential legislative solution where the judiciary has failed to act directly.
The Supreme Court's perceived delegitimization due to its 'mistaken jurisprudence' could lead to a 'reckoning' if Democrats achieve a political 'trifecta' (President, House, and Senate).
Such a reckoning could result in significant reforms or challenges to the Court's power, potentially leading to court-packing or other structural changes. However, Feldman predicts that if progressives gain a majority on the Court, they will likely abandon calls for limiting its power, mirroring historical patterns.
Progressives should focus on achieving a Democratic trifecta and making judicial appointments to flip the Court's ideological balance, rather than advocating for weakening the institution. This strategy, while long-term, is presented as more viable for achieving progressive goals than relying on congressional action alone.
Key Concepts
Judicial Activism vs. Judicial Restraint
This model describes two contrasting philosophies of judicial interpretation. Judicial restraint advocates for judges to limit their own power, deferring to the legislative and executive branches, and only striking down laws when they are clearly unconstitutional. Judicial activism, conversely, suggests that judges should use their power to overturn laws or establish new legal principles to correct societal wrongs or protect rights, even if it means departing from precedent or legislative intent. The podcast argues that Chief Justice Roberts, despite claiming judicial restraint, has engaged in activism by reinterpreting the Voting Rights Act and the major questions doctrine in ways that align with conservative outcomes.
The Dual-Use Weapon of the Supreme Court
Professor Feldman describes the Supreme Court as a 'dual-use weapon' or a 'sword that can cut in both directions.' This mental model highlights that the Court's power, while capable of advancing progressive causes (e.g., civil rights, gay rights), can also be wielded to undermine them (e.g., Voting Rights Act, *Roe v. Wade*). The utility of the Court is largely dependent on its ideological composition, leading to a cyclical pattern where whichever political side holds the majority tends to 'love' the Court and abandon calls for its limitation.
Lessons
- Understand that the Supreme Court's decisions on voting rights, particularly regarding gerrymandering, have profound and lasting impacts on the fairness of elections and democratic representation.
- Recognize the tension between judicial restraint and judicial activism, and how these philosophies are selectively applied by the current Supreme Court to achieve specific ideological outcomes.
- Support efforts at the state level for non-partisan redistricting and advocate for federal legislation to ban partisan gerrymandering, as these are potential avenues to restore democratic integrity where the Supreme Court has declined to act.
Notable Moments
Discussion on *Shelby County* and *Louisiana v. Cala* as key cases defining Roberts' legacy in dismantling the Voting Rights Act.
These cases illustrate the Court's active role in reinterpreting and weakening civil rights legislation, directly impacting minority representation and the integrity of elections.
The debate between the host and Professor Feldman on whether to limit the Supreme Court's power or to change its composition.
This highlights a fundamental strategic disagreement among progressives regarding how to address a conservative-leaning judiciary and its impact on democracy and individual liberties.
Feldman's argument that the Supreme Court is essential for protecting individual liberties when other government branches fail, using examples like Trump's executive actions.
This underscores the unique and often indispensable role of the judiciary in the American system of checks and balances, even when its current decisions are controversial.
Quotes
"If you do a racial gerrymander, but you call it a partisan gerrymander and no one can definitively prove that your deep motivation was race, even though it eliminates majority minority districts, you're protected. And the Voting Rights Act doesn't stop that from happening."
"This is a law passed by Congress, repassed multiple times by Congress, couldn't be clearer that this is what it means. And he flipped it and he did it twice. So that's a deviation from his own supposed principles."
"We need the Supreme Court not because the Supreme Court is so great but because there's no one else in the system to do the job of protecting individual liberties and assuring that democracy functions well."
"I will just predict that progressives will kind of forget about their plan of limiting the court exactly the way the conservatives did."
Q&A
Recent Questions
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