Among the many insults of the Supreme Court’s Wednesday ruling in Louisiana v. Callais eviscerating the last functional provision of the Voting Rights Act, one in particular stuck out to me.
It appeared in the final lines of the majority opinion by Samuel Alito. “While the dissent wraps itself in the mantle of stare decisis,” Justice Alito wrote, using the Latin term for the Court’s longstanding practice of abiding by its prior rulings, “the dissent is unabashedly at war with key precedents.” Alito then identified the precedents he was thinking of: Shelby County v. Holder, Rucho v. Common Cause, and Brnovich v. Democratic National Committee.
A quick refresher: Shelby County, from 2013, was the first crippling blow to the Voting Rights Act; Rucho, from 2019, denied the Court’s protection to Americans whose votes have been erased by partisan gerrymandering; and Brnovich, from 2021, created new standards to undermine Section 2, the same provision at issue in Callais this week.
Do you see a pattern? These cases were all decided in the last 13 years, all by the Roberts Court, and all part of the right-wing justices’ long project to undermine the voting rights of millions of Americans, especially those who happen to be Black and/or vote for Democrats. Alito was in the majority for all three, and he wrote the majority opinion in Brnovich.
In conclusion, Alito wrote, “Respect for precedent cannot be a one-way street.”
The point of respecting precedent, of course, is to provide stability and predictability to the Court’s decisions and to buttress the Court’s legitimacy with the American people not only year to year, but for generations. That’s not what Alito was doing here. In citing these specific cases and demanding “respect” for them as precedent, he was dunking on the dissenters, and on the millions of Americans who cherish (or cherished) the Voting Rights Act.
Gaze at what we have done, he was saying. And what we will keep doing, because we have the votes. This mirrors the logic of the opinions in these cases, not to mention the very manner in which the current supermajority was assembled, which is that brute power is all that matters. If you can amass enough of it, if you can corral the votes to win (however you may have to accomplish that), who’s going to stop you?
That is why, as the Court’s radical right has become increasingly entrenched, it has become increasingly self-referential. They are constructing a world of their own, untethered from modern American life, from previous Court rulings, and from the Constitution itself. They can cite themselves approvingly and call it a day.
Indeed, the last time Alito considered a monumental precedent — Roe v. Wade, which the Court struck down in 2022 — he casually dismissed not only the justices who wrote it in 1973, but all those who voted to uphold it over the intervening half century. The opinion had been “egregiously wrong” the moment it came down, he wrote. Generations of justices, Republican and Democratic appointees alike, were not just wrong; they were egregiously so.
In a profession that already tolerates outsized egos, this attitude raises the bar. The only precedents that really matter are those you have established yourself.
What makes it that much harder to take is that their opinions are among the least defensible in recent history. Opponents of Roe v. Wade ranted for decades about its lack of constitutional grounding, about the “penumbras” and “emanations” the ruling found in the Bill of Rights that magically guaranteed a woman’s right to bodily autonomy; but in Shelby County, Chief Justice John Roberts and the majority relied on a principle, “equal state sovereignty,” that they just made up. (Even as they disregarded the 15th Amendment’s very clear grant of power to Congress to protect voting rights.) In Rucho, the majority abdicated their most important role, admitting that extreme gerrymanders are “incompatible with democratic principles,” but refusing to lift a finger to stop them. And in Brnovich, they erected brand new hurdles for litigants to clear in order to prevail in Section 2 cases.
