SCOTUS’ Conservative Supermajority Follows Through on Shelby County v. Holder, Crippling the VRA

For the Second Time Under Chief Justice Roberts, the Supreme Court Has Defanged the Voting Rights Act. Will the Democrats Finally Push to Expand the Court?

Zach Salcido
6 min readJul 9, 2021
Photo by Anna Sullivan on Unsplash

Using a court ruling in an Arizona case, the Supreme Court Thursday morning signaled to Republican legislatures nationwide that voting laws restrictive to Section 2 of the Voting Rights Act will find no resistance from the bench. That ever-important section of the VRA outlaws any “standard, practice, or procedure” that limits the ability for minority citizens to vote. This comes not even a decade after the 2013 decision in Shelby County v. Holder, which struck down other key provisions in the original 1965 law that instituted federal oversight of any changes within state election laws.

In many ways, it is the life’s work of Chief Justice John Roberts Jr. to gut the Voting Rights Act entirely. He emerged in the legal world at a time in which there was a sort of knee-jerk reaction to the liberal civil rights-era legislation and jurisprudence of the 1960s, a conservative recalcitrance within American law more generally. This opposition quickly came to be defined by the fight to restrict voting access, especially in places heavily concentrated with minority voters who historically vote for the Democrats. This is really the root of many Republican electoral victories in recent history, along with aggressive gerrymandering and redlining and gentrification. Roberts’ public opposition to the law has been nothing short of palpable, working to see the dismantlement of Section 2 as a young lawyer in Ronald Reagan’s DOJ in the 1980s and authoring the majority opinion in Shelby County in 2013.

Newly empowered with a Republican supermajority courtesy of Mitch McConnell’s Senate obstructionism and three SCOTUS picks from former President Trump, Chief Justice Roberts is finally able to manifest the logical conclusion to his life’s work and to Shelby County, specifically with respect to ending Section 2. The reality is that this is how Republicans have generated wins in state and federal races for more than a half century: by removing polling stations in minority communities, by pushing for the implementation of voter identification, by limiting mail-in voting, and so on, all under the guise of jurisprudential “color blindness” that was born out of the Justice William Rehnquist school of thought, an ultra-conservative textualist that mentored a young John Roberts.

Fueled by erroneous claims of widespread voter fraud and Republican dissemination of their Big Lie, conservative statehouses have been churning out legislation that mitigates access to voting in myriad ways, including but not limited to the two Arizona laws that the Supreme Court upheld Thursday morning. These anti-voting laws have picked up since the court’s 2013 decision in Shelby County, culminating ultimately in their recent decision to defang Section 2, the last truly impactful mandate of the original Voting Rights Act.

In that 2013 decision, SCOTUS told Congress that the Voting Rights Act was broken and needed to be fixed, but to no avail from any Congress up this point. The John Lewis Voting Rights Act, a de facto restoration of the core sections of the original Voting Rights Act that the Supreme Court struck down, is unlikely to pass in the Senate in the absence of meaningful changes to archaic rules in the chamber such as the filibuster. Democrat-controlled statehouses that are willing to take matters into their own hands are few and far between, although Governor Northam’s approval of a Virginia Voting Rights Act is encouraging as a national model for fighting back against Republican efforts of this kind.

With the undermining of Section 2 in the Arizona case that the court recently took up, the Voting Rights Act has essentially been rendered useless. The landmark legislation that the late John Lewis and many other activists shed blood on the Edmund Pettis Bridge to help manifest on that fateful Sunday in Selma, Alabama, has once and for all been gutted by a conservative supermajority. This steady and long-time work of conservative justices and organizations is well-documented, and the reality that many before me have pointed out is that the Supreme Court itself has been actively dismantling American democracy for decades now- by greenlighting voter roll purges; by clearing the way for partisan gerrymandering; and by deleteriously inviting nearly endless amounts of dark money to infiltrate and subdue the American body politic.

With the Supreme Court actively working against American democracy in some cases and avoiding issues where their involvement is crucial in others, conservatives are on the precipice of entrenching minority rule for at least a generation. I and many others have already written about the importance of expanding what has been in recent decades an anti-democratic Supreme Court, and this recent move from the bench only makes it more clear how high the stakes are if the Democrats do not push for it. It would simply take too long to wait for every state to implement independent legislation, and to say bartering with the Republicans to generate 60 votes in the Senate is wishful thinking would be an understatement.

Past this issue, however, are broader repercussions for American democracy, like the all-important Roe v. Wade decision which has been tampered with for decades and now appears to be on the brink of being undermined altogether. Recent addition to the bench Amy Coney Barrett, whose family has various ties to Big Oil, is set to deliver an opinion in a case brought against multiple oil conglomerates accusing them of knowing for decades about the effects of fossil fuel usage on the planet’s ecosystem. And while all that takes place, the American body politic on both sides of the aisle is choreographed by the flow of dark money, the remnant effects of SCOTUS decisions ultimately paid for by conservatives like the Koch brothers and Sheldon Adelson.

In conclusion, the degradation of American democracy begins and ends with the Supreme Court and its legitimacy within our legal system. Decisions from the bench in the previous decades(Shelby County, Citizens United, Buckley v. Valeo, et cetera) have aided conservatives at all levels to dilute American democracy and entrench minority rule in presidential elections, in both legislative chambers, and beyond. If Joe Biden wants to truly get to work on the rest of his domestic policy agenda, he will have to finally embrace his bully pulpit and work with his Democratically-controlled Congress to once and for all end the Jim Crow filibuster and bring forth legislation to expand the Supreme Court.

Democratic leadership, especially in the Senate chamber, can no longer cede power to conservative members of their caucus like Joe Manchin and Kyrsten Sinema. Use whatever legislative process, be it reconciliation or otherwise, to outmaneuver the Republicans where it matters while you are still emboldened by a legislative trifecta. Even after taking a beating for years from former Majority Leader Mitch McConnell and being unprecedentedly denied a legitimate Supreme Court pick, the Democrats still don’t get it. A relic of a former era of racism and apartheid, abolish the filibuster immediately, and find a way to rally 50 votes to expand the Supreme Court to 13 justices. Because if you don’t, it will soon spell the end of Roe and uniform voting rights and certainly our environment, and there will be no recuperation of the political system from corporations and the ultra-rich.

--

--

Zach Salcido

Oregon Law student. Interested in writing about politics, public policy, and law.