The Supreme Court broke democracy by saying the quiet part out loud

Last Wednesday, the Supreme Court’s Republican majority effectively repealed a 1982 amendment to the Voting Rights Act that required some states to draw a minimum number of majority-Black or majority-Latino legislative districts. The GOP justices’ decision has already kicked off another round of skirmishes in the gerrymandering wars. Louisiana suspended its US House elections until new maps can be drawn that will elect more white Republicans. Mississippi’s legislature will hold a special session where it could draw similar maps. Tennessee and Alabama also appear likely to draw whiter and more Republican maps before the upcoming midterm elections. - The United States has never had robust protections against gerrymandering, and it’s allowed wealthy donors to shape politics for a very long time. - But both gerrymandering and campaign finance got so much worse after the Supreme Court explicitly said it would not solve either problem. - The Court also gave Trump explicit permission to prosecute his political opponents. Meanwhile, lefty groups are already plotting to overcome rigged Republican maps with equally rigged Democratic ones. Fair Fight Action, an advocacy group founded by former Democratic Georgia gubernatorial candidate Stacey Abrams, has a plan to turn 10 US House seats blue right away — and to turn as many as 22 districts into gerrymandered Democratic seats if Democrats pick up enough seats in the right state legislatures. This latest round of gerrymandering, moreover, builds on the previous year’s worth of redistricting fights in Texas, California, Virginia, and Florida. And the Supreme Court also deserves the lion’s share of the blame for those gerrymanders. In Rucho v. Common Cause (2019), the Court’s Republican majority ruled that federal courts may never, ever intervene to block a partisan gerrymander. So gerrymaxxing lawmakers no longer need to worry if their maps are constitutional or not. That said, it’s not like the United States had particularly robust safeguards against gerrymandering before Rucho came along. In Davis v. Bandemer (1986), the Supreme Court said that a sufficiently partisan gerrymander could violate the Constitution, but it didn’t actually strike down the Indiana maps at issue in that case. The Court reached a similar result in Vieth v. Jubelirer (2004), which upheld a Pennsylvania congressional map even as a majority of the justices warned that they might intervene in a future case. For more than three decades, in other words, the Court maintained a kind of strategic ambiguity. It never struck down a map drawn to give an unfair advantage to one political party or the other. But it also kept open the possibility that it might strike down a truly egregious gerrymander in the future. And that strategic ambiguity mattered. Before Rucho, state lawmakers drew plenty of gerrymandered maps, but they typically only did so every 10 years. (The Constitution requires each state to update its maps following a new US Census.) And even when lawmakers did draw biased maps, they did not always squeeze every drop of partisan juice out of their states. After the 2010 Census, for example, Texas Republicans drew a map that gave them two-thirds of the state’s congressional districts in an election when Republicans earned about 58 percent of the vote. Texas’s newest map, by contrast, was drawn to give Republicans 30 of the state’s 38 US House seats — nearly 80 percent of the state’s congressional delegation. Nor is Rucho an isolated case. The Roberts Court has a penchant for giving bad actors explicit license to engage in anti-social behavior, when the Court had previously kept the law more ambiguous. The Court’s decision in Citizens United v. FEC (2010), for example, explicitly held that corporations could spend unlimited amounts of money to influence elections, and it triggered a massive spike in election spending. But Citizens United didn’t actually change the law all that significantly. Before it was handed down, corporations could already spend unlimited sums of money to influence elections. What Citizens United did accomplish is it sent a loud signal to politically minded billionaires and corporations that the Court wouldn’t interfere if they flooded every contested election in a tsunami of cash. Similarly, while Trump’s first-term Justice Department was hardly a model of nonpartisan rectitude, it typically drew a line against prosecuting people solely because Donald Trump perceived them as an enemy. It wasn’t until the Supreme Court held, in Trump v. United States (2024), that Trump may order the DOJ to target people “for an improper purpose” that political prosecutions took off. Sometimes, in other words, the best thing that the Court can do is say nothing at all. It could have continued to uphold individual gerrymanders without stating definitively that there are no rules. It could have similarly held its tongue in Citizens United. And it certainly didn’t have to give Trump explicit permission to weaponize the DOJ. Of these three cases — Rucho, Citizens United, and Trump — the second is the most explicable. The majority opinion in Citizens United did not simply endorse corporate spending on elections; it spoke of money in politics as if it were an affirmative moral good. “A substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors,” Justice Anthony Kennedy wrote for himself and four other Republicans. “Democracy,” he concluded, “is premised on responsiveness.” Odd as this belief may be, it makes sense that a justice who thinks that campaign spending is the soul of democracy would want to abolish limits on it, even the informal limits that arose out of donors being uncertain whether the Supreme Court might spank them if they exerted too much influence over elections. But the same thing cannot be said about at least some of the justices who joined the Court’s gerrymandering decision in Rucho. Rather than claiming that gerrymandering should be celebrated, Chief Justice John Roberts’s majority opinion in Rucho says that partisan redistricting “leads to results that reasonably seem unjust,” and that are “incompatible with democratic principles,” even though he ultimately concludes that federal courts should play no role in stopping it. At a superficial level, neither Citizens United nor Rucho significantly changed the Court’s approach to election disputes. The Court has never actually struck down a map because it was drawn to benefit one political party or the other (although the Court did sometimes strike down gerrymanders that disempowered voters of a particular race). And campaign finance rules prior to Citizens United were almost as hands-off as the rules that exist today. Before Citizens United, both wealthy individuals and corporations could give unlimited amounts of money to “527s,” organizations named after Section 527 of the Internal Revenue Code, which could do nearly everything that post-Citizens United groups such as super PACs can now do to influence elections. The primary difference between a pre-Citizens United 527 and a modern-day super PAC is that 527s could not engage in explicit advocacy for the election or defeat of a candidate for federal office. A 527’s political ads could lay out all the reasons why its donors want voters to replace Senator Jones with Challenger Smith. But instead of ending the ad with an explicit call to “vote for Smith,” as post-Citizens United groups may now do, the old 527s would end with a line like “Call Senator Jones and tell her to stop wasting your tax dollars.” Still, while Citizens United (and a follow-up case that is widely credited for enabling modern-day super PACs) did little more than allow advocacy groups to remove a fig leaf from their political ads, spending on federal elections skyrocketed after Citizens U…