Conservative justices are undermining democracy
By: Alan Garfield
Your Turn
Guest columnist
..... The conservative justices on the Supreme Court are undermining our democracy. Their latest decision, which rendered the landmark 1965 Voting Rights Act toothless, is merely the most recent in a series of opinion in which the court's conservative majority has either paved the way for legislator to sabotage our democracy or thwarted legislative efforts to booster our democracy.
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Take partisan gerrymandering, that unseemly practice through which politicians draw legislative district lines to entrench themselves in office and impeded political change.
..... In 2019, the Supreme Court has an opportunity to curb this abuse, but the conservative justices opted to do nothing. Chief Justice John Robers, who wrote the majority opinion, said federal judges have no way of determining when a partisan gerrymander is unconstitutional.
..... consequently, he led that federal judges should not even hear these cases. Roberts acknowledged that partisan gerrymandering is "incompatible with democratic principles," but he said it "does not mean that the solution lies with the federal judiciary."
..... The court's parasitism gerrymandering opinion exemplifies the conservative justices' failure to stop legislative actions that harm our democracy. Making matters worse is that these same subspecies have been eager to strike down or narrowly construe well-intended laws designed to improve our democracy.
..... Perhaps the most pernicious act by this democracy-wrecking cabal is its gradual dismantling of the Voting Rights Act. That act prohibits discrimination against voters based on their race. One might have thought this discrimination had disappeared long ago, since the 15th Amendment, enacted after the Civil War, prohibits the very same thing. But the 15th amendment went unenforced for almost a century. It took the civil rights movement in the 1950s and 1960s to finally get Congress to put teeth into it.
..... The crown jewel of the Voting Rights Act was Section5, which requires states with a history of railcard discrimination in voting to get approval of any election law changes form the federal government. This preclearance rule led to huge increase in Black voting in the South. But the conservative justices, in a 2013 opinion, used this very success as an excuse for gutting the procedure. They did not declare the procedure unconstitutional. Instead, the said the progress in the covered states made it unnecessary to subject them to preclearance. Justice Ruth Bader Ginburg's dissent captured the irony: "throwing out preclearmace when it had worked and is continuing to work to stop discriminatory changes
is like throwing away your umbrella in a rainstorm beaus you are not getting wet."
Final assault on Voting Right Act
..... Gutting Section 5 severely undermined the Voting Rights Act. Fortunately parties could still bring lawsuits under Section 2 of the act, which permits challenges to state actions that deny racial groups an equal opportunity to "elect representatives of their choice." But now even that section has been eviscerated thanks to the conservative justices' April 29 [2026] decision on the Voting Rights Act. The justices still invite plaintiffs to bring Section 2 lawsuits. They simply made the burden of proof so impossibly high as to make the lawsuits pointless.
..... Justice Samuel Alito, the opinion's author, achieved this result by contorting Roberts' limited earlier ruling - that federal courts should not hear partisan gerrymander challenges - into a full-throated judicial blessing of even the most extreme partisan gerrymandering. Partisan gerrymandering, Altio declared, is "a constitutionally permissible criterion that States may rely on as desired."
..... So, yes, plaintiffs may bring claims that legislators unlawfully drew district lines based on race. But, given the reality that Black people largely vote Democratic legislators will almost always be able to say that they drew lines based on party affiliation. The upshot is that legislators in republican-controlled states have free rein to use partisan gerrymanders regardless of their negative effects on minority voters, And Alito was emphatic that challengers may not "reverse-engineer the parasitism data into racial data and argue that the State impermissible set a particulate racial target." As Justice Elena Kagan lamented in her dissent, "States now have an automatic political-gerrymandering defense."
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It is little wonder, then, why the Tennessee legislators, who recently carved up the only majority Black congressional district in the state, were quick to say that their line drawing was based on partisan politics and not race. They were simply reading form the scrip the conservative justices had written for them.
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Are the conservative justices who authored or joined these options merely partisan in robes, or are they just oblivious to the harm they are causing? the answer is unclear. What is clear is that our democracy loses either way.
..... Alan Garfield is a distinguished professor at Widener University Delaware Law School.