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Kagan Dissent Says Alito Wants to Enable Voter ‘Discrimination,’ Accuses Conservatives of Judicial Activism and ‘Lawmaking’


In a 6-3 opinion, the U.S. Supreme Court on Thursday limited the scope of the federal 1965 Voting Rights Act. The court held that the VRA could not functionally invalidate two Arizona state voting laws which made it harder for some people to cast ballots — all because the court agreed that no racist intent was present when the state laws were drafted.

In a lengthy dissent longer than the majority opinion itself, Justice Elena Kagan wrote for the court’s more liberal members and called out the conservative wing led by Justice Samuel Alito for agreeing to a ruling that “enables voting discrimination.”

“If a single statute represents the best of America, it is the Voting Rights Act,” the dissent begins in a one-two punch formulation. “It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out.”

“If a single statute reminds us of the worst of America, it is the Voting Rights Act,” Kagan continues, pointing to the extant legacy of Jim Crow racism.

Because of that legacy, Kagan said the VRA “was—and remains—so necessary.”

The dissent continues to defend the VRA broadly against piecemeal efforts to neuter its effectiveness by the increasingly conservative Roberts Court over the past ten years or so.

“The Voting Rights Act of 1965 is an extraordinary law,” Kagan opined. “Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this Court has treated no statute worse.”

A quick historical survey places those attacks on the statute in the context of invidious discrimination–and brings the reader’s focus to the current section of the VRA before the court:

The Voting Rights Act is ambitious, in both goal and scope. When President Lyndon Johnson sent the bill to Congress, ten days after John Lewis led marchers across the Edmund Pettus Bridge, he explained that it was “carefully drafted to meet its objective—the end of discrimination in voting in America.” He was right about how the Act’s drafting reflected its aim. “The end of discrimination in voting” is a far-reaching goal. And the Voting Rights Act’s text is just as far-reaching. A later amendment, adding the provision at issue here, became necessary when this Court construed the statute too narrowly. And in the last decade, this Court assailed the Act again, undoing its vital Section 5. See Shelby County v. Holder, 570 U. S. 529 (2013). But Section 2 of the Act remains, as written, as expansive as ever — demanding that every citizen of this country possess a right at once grand and obvious: the right to an equal opportunity to vote.

Section 2 offers aggrieved voters the chance to avail their rights against laws which dilute their votes. It is intended to give third-party plaintiffs the ability to contest such laws, but the majority opinion guts the application and usefulness of that right by upholding laws that may have racist outcomes so long as they are not clearly racist in intent.

“Section 2 of the Act remains, as written, as expansive as ever — demanding that every citizen of this country possess a right at once grand and obvious: the right to an equal opportunity to vote,” Kagan argues, noting the intentionally capacious nature of the language at issue. “Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical” — that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language.”

Hinted at above, the dissent all but outright accuses the conservative majority of the one thing that conservatives have long been keen accusing judicial liberals of doing: engaging in judicial activism.  From the dissent:

[The majority] uses that [conservative] reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about “the end of discrimination in voting.” I respectfully dissent.

Key to the dissent’s understanding is that the Shelby County decision took away the federal government’s ability to subject several former Confederate states and other historically-problematic jurisdictions to preclearance requirements before those locales could institute new voting laws. Therefore, in the wake of Shelby County, a raft of new voter regulations have been passed — largely by Republican-dominated state legislatures — and whose detractors claim to be voter suppression measures. The dissent characterized the upshot measures as follows: “efforts to suppress the minority vote continue.”

On page 11 of the dissent, Kagan ominously invokes a recent raft of alleged voter suppression measures that were passed in Georgia:

In recent months, State after State has taken up or enacted legislation erecting new barriers to voting. Those laws shorten the time polls are open, both on Election Day and before. They impose new prerequisites to voting by mail, and shorten the windows to apply for and return mail ballots. They make it harder to register to vote, and easier to purge voters from the rolls. Two laws even ban handing out food or water to voters standing in line. Some of those restrictions may be lawful under the Voting Rights Act. But chances are that some have the kind of impact the Act was designed to prevent—that they make the political process less open to minority voters than to others.

Alito, for his part, derides this invocation of history and “all sorts of voting rules that are not at issue here” as obfuscatory.

In her first footnote, Kagan sarcastically addresses this criticism:

The majority brands this historical account part of an “extended effort at misdirection.” I am tempted merely to reply: Enough said about the majority’s outlook on the statute before us. But I will add what should be obvious — that no one can understand the Voting Rights Act without recognizing what led Congress to enact it, and what Congress wanted it to change.

The dissent returns to the sport of calling the conservative majority opinion an exercise in political conservatism activism:

The majority’s opinion mostly inhabits a law-free zone. It congratulates itself in advance for giving Section 2’s text “careful consideration.” Ante, at 14. And then it leaves that language almost wholly behind. (Every once in a while, when its lawmaking threatens to leap off the page, it thinks to sprinkle in a few random statutory words.) So too the majority barely mentions this Court’s precedents construing Section 2’s text. On both those counts, you can see why. As just described, Section 2’s language is broad. To read it fairly, then, is to read it broadly. And to read it broadly is to do much that the majority is determined to avoid. So the majority ignores the sweep of Section 2’s prohibitory language. It fails to note Section 2’s application to every conceivable kind of voting rule. It neglects to address the provision’s concern with how those rules may “abridge[],” not just deny, minority citizens’ voting rights.

“This Court has no right to remake Section 2,” Kagan concludes. “Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”

[image via Mark Wilson/Getty Images]

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