Amicus With Dahlia Lithwick | "An Elegy for the Voting Rights Act"

Episode Date: July 3, 2021
Host: Dahlia Lithwick
Guests:

• Prof. Jeffrey Fisher (Stanford Law)
• Perry Grossman (NYCLU, Voting Rights Project)
• Prof. Melissa Murray (NYU Law, Strict Scrutiny podcast)
• Mark Joseph Stern (Slate)

Episode Overview

This annual "end of Supreme Court term" roundtable, hosted by Dahlia Lithwick, convenes a panel of prominent legal experts to discuss the surprising dynamics of the 2020-2021 Supreme Court term. The central focus is the sharp narrowing of the Voting Rights Act by the Court in Brnovich v. Democratic National Committee—a development the panelists view as a major setback for voting rights and the future of American democracy. The episode also explores the philosophical throughlines of the term: the increasing conservatism of the Court, the way it approaches voting rights, campaign finance, and how its decisions reverberate in the US political system.

Key Discussion Points & Insights

1. General Observations on the 2020-2021 Supreme Court Term

• Dahlia Lithwick opens by juxtaposing expectations versus the outcomes of the term. While some had predicted a "6-3 conservative juggernaut," surprising alliances and more moderate rulings characterized much of the year—until the term’s final, highly consequential opinions (Brnovich & Americans for Prosperity).
• Melissa Murray (04:44): Challenges the narrative of a moderate or restrained Court, noting that off-docket “shadow docket” decisions paint a picture of a fundamentally conservative Court.

  "I think the whole idea that this is a moderate or minimalist or restrained court is really a gross exaggeration." (04:44)

• Jeffrey Fisher (06:41): Agrees today’s Court is structurally different than in years past; while not always 6-3, ideologically divisive cases— particularly around voting rights—still see the justices entrenched in camps.

2. Analyses of Court Voting and Metrics

• Mark Joseph Stern (08:53): Emphasizes that media and statistics often fail to appreciate the substance and stakes of particular cases, noting that strategic voting and complexity can mask the Court’s true impact.

  "It's simply impossible to quantify a lot of decisions in the way that stat nerds want to, especially with this court." (08:53)

• Court’s majorities and coalitions, while varied numerically, often mask the rightward shift in outcomes.

3. Brnovich v. Democratic National Committee — Voting Rights Aftermath

• Perry Grossman (13:35): Explains the historical pattern of the Court contracting the Voting Rights Act, accelerated by the current majority.

  "[Brnovich] is very much a return to the way in which the Court has tamped down efforts to enforce the Voting Rights Act and to make sure the electorate can ... respond in meaningful ways when the court strikes down federal laws." (13:35)

• What Did Brnovich Do?
  • Upheld Arizona’s out-of-precinct ballot rule and restriction on third-party ballot collection.
  • Opinion (Justice Alito) introduces ambiguous “guideposts,” making it significantly harder to challenge voting restrictions under the Voting Rights Act’s Section 2.
  • Grossman (16:17): “What Justice Alito’s opinion really does is invite states to continue... crafting ever more subtle and sophisticated ways of suppressing minority votes.”
  • The decision decimates what remains of the VRA after Shelby County (2013), effectively hollowing both Section 5 (preclearance) and now Section 2 (post-hoc litigation).
• Melissa Murray (25:48): Draws a parallel to past cases where the Court made sweeping changes but claimed “protections” remained, only to later undermine those as well.

  "It was Chief Justice Roberts who... said, 'don't worry... Section 2 of the Voting Rights Act... will save us.' And here we are... and now the Court is saying, actually, we're going to hobble Section 2 as well." (25:48)

4. Americans for Prosperity — Donor Disclosure and Campaign Finance

• Mark Joseph Stern (30:09):
  • The case struck down a California law requiring charities to disclose major donors to the state AG, not the public, on First Amendment grounds.
  • Roberts’ opinion applies "exacting scrutiny" to disclosure laws—a potentially seismic shift implicating campaign finance.

  "If you apply strict scrutiny to a lot of long-standing disclosure requirements... those laws may well fall..." (30:09)

  • Links the case to Brnovich: the Court exhibits deep concern about “cancel culture” and donor privacy but dismisses evidence of voter suppression, reflecting selective scrutiny.
  • Notes irony: The First Amendment "freedom of association" invoked originates in substantive due process, usually scorned by conservatives.
• Melissa Murray (37:14): Critiques the broad coalition of civil rights groups supporting the plaintiff, observing they were "explicitly used" by Roberts to bolster the outcome—potentially to their future regret.

5. Selective Vision, Judicial Priorities, and Double Standards

• Mark Joseph Stern (44:29):
  • Alito and the majority more offended by “allegations” of racism than by evidence of discrimination itself.
  • The Court invokes public confidence in elections to justify voting restrictions but refuses the same rationale to support campaign finance transparency.
• Jeffrey Fisher (50:14): Offers a nuanced take: it isn’t that justices don't see facts; it’s what they choose to prioritize.

  "It's not that he doesn't see the problem, it's just that he doesn't prioritize it to the level of some of the other justices." (50:25)

6. Looking Ahead: Court Reform, Next Term, and What Can Be Done

• The panel discusses the apparent disconnect between the magnitude of the Court’s rightward shift and the lack of Congressional response, especially regarding court reform.
• Mark Joseph Stern (54:19): Foresees a “bloodbath” next term, with big-docket cases in guns, abortion, religious funding, and affirmative action likely driving further conservative transformation.

  “They are teeing up a bloodbath for next term. ... This will be the make or break moment for court reform possibly in our lifetimes.” (54:19)

• Jeffrey Fisher (56:49): Urges not to assume future outcomes based on the Court’s willingness to take cases—coalition-building remains unpredictable.
• Melissa Murray (58:35): Predicts that the relative calm of this term is "table setting" for major rightward rulings in the next.
• Perry Grossman (60:19):
  • Gives final thoughts: while legal challenges remain possible, the most important response is civic engagement and turnout.

  “Always, you can organize, you can vote, you can get out and bring people to the polls... that's in the end, the most important thing.” (60:19)

Notable Quotes & Memorable Moments

• Melissa Murray (25:48):

  "It was Chief Justice Roberts who in writing that opinion in 2013 and Shelby county versus Holder said, don't worry, yes, we are gutting section five of the voting Rights act ... But don't worry, there's still Section two of the Voting Rights act. ... And now, you know, the Voting Rights act ... is basically a shell of what it once was."

• Mark Joseph Stern (30:09):

  "...the Supreme Court thinks cancel culture is real and voter suppression is not."

• Perry Grossman (16:17):

  "What Justice Alito's opinion really does is invite states to continue the sort of long-term trajectory of discrimination in voting, which is to craft ever more subtle and sophisticated ways of suppressing minority votes."

• Jeffrey Fisher (50:25):

  "It's not that he doesn't see the problem, it's just that he doesn't prioritize it to the level of some of the other justices."

• Mark Joseph Stern (54:19):

  “They are teeing up a bloodbath for next term. ... This will be the make or break moment for court reform possibly in our lifetimes.”

Important Timestamps

• 04:44: Melissa Murray on the myth of a "moderate" Court
• 08:53: Mark Joseph Stern on strategic voting and case substance
• 13:35: Perry Grossman: Brnovich and the state of democracy
• 16:17: Grossman summarizing the impact of Brnovich on voting rights
• 25:48: Melissa Murray on the Court’s "two-step" erosion of protections
• 30:09: Mark Joseph Stern on the implications of Americans for Prosperity
• 44:29: Stern on judicial selective vision (racism allegations vs reality)
• 50:25: Fisher on judicial value prioritization
• 54:19: Stern's forecast of next term’s “bloodbath”
• 60:19: Grossman’s final call to civic action

Conclusion

The episode powerfully threads together the Supreme Court’s current term, showing how apparently complex and nuanced decisions are contributing to structural changes in basic democratic rights. The panel collectively warns that modest data points and seemingly technical legal tests mask a Court that is both emboldened and committed to retracting protections for voting rights and campaign finance transparency. As next term promises even more high-stakes cases on social issues, the guests urge close public attention and renewed civic engagement.

For listeners seeking clarity on this landmark Supreme Court term, this episode unpacks the legal, political, and philosophical stakes with expertise, candor, and urgency.