Preview: A Shattering Blow to Fair Elections

Summary

Amicus with Dahlia Lithwick | Law, justice, and the courts

Episode: Preview: A Shattering Blow to Fair Elections

Date: June 3, 2026
Host: Dahlia Lithwick
Guest: Mark Joseph Stern

Episode Overview

In this urgent, unscheduled midweek episode of Amicus, Dahlia Lithwick and Slate legal writer Mark Joseph Stern dissect a late-breaking and deeply controversial Supreme Court order allowing the use of racially discriminatory congressional maps in Alabama. The episode explores how the decision, riding on the coattails of Louisiana v. Calais, not only undermines Black voting power in Alabama but signals a potentially existential threat to what remains of federal protections against racial gerrymandering. The conversation lays bare how the Court's conservative majority is reshaping the legal landscape on voting rights—often through brief, unsigned orders issued on the so-called “shadow docket”—and the devastating impact this has for fair representation and democracy.

---

Key Discussion Points & Insights

1. The Supreme Court’s Shadow Docket Decision

• Summary: The Court issued an unsigned, shadow docket order that effectively permitted Alabama to implement 2023 congressional maps disadvantageous to Black voters.
• Legal Context: The decision leans on the outcome of Louisiana v. Calais, making it exceedingly difficult, if not impossible, to challenge racially discriminatory maps in court ([00:49]).

Mark Joseph Stern:
"The Republican appointed justices have allowed Alabama to impose at the very last minute ... a map that eliminates one very diverse opportunity district for racial minorities ... and just carve it up in a way that gives white voters total control over that district and they are certain to elect a white Republican instead. And so, this badly dilutes the political representation of black Alabamians." ([01:39])

2. The Effect on Black Voting Rights

• Insight: The decision is read as a near-total abandonment of Black voting rights at the federal level.

• "It sends a very clear message to lower courts that ... there are no more black voting rights. That courts should never try to protect racial minorities who are being targeted for electoral disadvantage ... the Supreme Court's just not going to allow it to happen." —Mark Joseph Stern ([02:52])

• Dahlia points out the use of the term "colorblind Constitution" in the order and its new role as the guiding principle, which in effect protects only white voters from alleged discrimination ([04:01]).

3. Legal and Political Gamesmanship by Alabama

• Background: Post-2020 census, Alabama redrew congressional lines in a manner disadvantageous to Black voters. When courts blocked their map, Alabama delayed, waited for Calais, and then moved to reinstate the blocked map—despite previous Supreme Court orders ([04:40]).
• Manipulation: The state’s actions were calculated to game the timing and outcomes of litigation to achieve desired electoral maps, demonstrating what Dahlia describes as Alabama "playing this like a fiddle" ([07:54]).

4. Shifting Standards: From Allen v. Milligan to Louisiana v. Calais

• In Allen v. Milligan (2023), the Court had required Alabama to create a second opportunity district for Black voters. However, after Calais gutted the Voting Rights Act, Alabama successfully argued for the implementation of its original, discriminatory map ([04:40]-[07:54]).
• Mark:
  "And now what we have seen is that the court really overturned Milligan ... and the court has imported these sort of jury rigged standards against black voters that it created in Calais ... into the constitutional context." ([09:55])

5. The Supreme Court’s Contradictory Approach

• Dahlia and Mark discuss the Roberts Court's pattern of creating legal change in incremental steps—now, increasingly, via sweeping, under-explained orders that have immediate and dramatic consequences ([10:50]).
• Mark underscores the gaslighting nature of these moves, where the Court claims to issue narrow rulings with limited application but subsequently invokes those rulings to justify expansive rollbacks of voting rights ([10:50]).

6. Barriers to Challenging Discriminatory Voting Maps

• Mark’s Analysis: Going forward, the burden on plaintiffs to prove intentional discrimination is raised to a nearly insurmountable level. Evidence that was previously sufficient to show discrimination is no longer enough under this Supreme Court ([12:04]).

---

Notable Quotes & Memorable Moments

• On the Court’s Priorities
  "The only kind of race discrimination in voting that this Supreme Court cares about is when states give 'too much' political representation to black and brown communities ... Racism against white voters, this Supreme Court is highly attuned to and sees everywhere ... But racism against black and brown voters, that's not just okay. That may in fact be required by the law in the Constitution, according to the Supreme Court." —Mark Joseph Stern ([03:00])

• On the Legal Chaos Unleashed
  "...now hundreds of thousands of voters have to be reassigned to new districts. And the state has previously represented that. That would take months. Now it has days to do it." —Mark Joseph Stern ([07:54])

• On Alabama’s Manipulation
  "Alabama cynically and in violation of ... Supreme Court orders and lower court orders played this like a fiddle ... They waited it out ... immediately after Calais comes down ... Alabama's like, hey, I guess Milligan's over and let's go." —Dahlia Lithwick ([07:54])

• On Standards of Evidence
  "I think the best way to answer that is to tell you what wasn't enough proof in this case for the plaintiffs to prevail." —Mark Joseph Stern ([12:04])

---

Important Segment Timestamps

• 00:49 — Dahlia introduces the core issue: Supreme Court allows Alabama's racially discriminatory voting map.
• 01:39 — Mark explains how the Supreme Court’s order nullifies Black voting rights and reshapes future legal challenges.
• 04:40 — Mark outlines the background leading to the current order, detailing Alabama’s legal strategy and the erosion of federal voting rights enforcement.
• 07:54 — Dahlia and Mark discuss Alabama's manipulative tactics and the Court’s failure to act on earlier warnings.
• 09:55 — Mark describes the importation of Calais logic into the constitutional context, gutting the 14th and 15th Amendments’ voting protections.
• 10:50 — Discussion of the Court’s evolving strategies for changing precedent and raising the burden on voting rights plaintiffs.
• 12:04 — The conversation pivots to the near-impossibility for future plaintiffs to prevail under the new standards.

---

Tone & Language

The conversation is passionate, urgent, and often stark in its assessment. Mark Joseph Stern’s language is direct and critical; Dahlia Lithwick’s commentary is exasperated and deeply concerned about institutional gaslighting and the cynical manipulation of both the legal process and constitutional principles.

---

For listeners seeking to understand the danger facing minority voting rights, this episode offers both a rigorous legal analysis and an unflinching perspective on the current Supreme Court’s approach to democracy.

Transcript

[A]

I am Dahlia Lithwick. Welcome back to an unscheduled midweek episode of Amicus, Slate's podcast about the courts and the law and the Supreme Court, in which Mark Joseph Stern and I come together on this Opinion Palooza season with yet more bad news from the U.S. supreme Court. Hey Mark.

[B]

Hi Dalia. And welcome to our Slate plus members who are going to have access to this conversation and to all of our opinionpalooza episodes in full. If you want to hear the whole thing, go to slate.com amicusplus and thank you for supporting us on this end of term rollercoaster.

[A]

Okay, so here it is, Mark. On Tuesday evening, the Supreme Court handed down an unsigned per curiam shadow docket order putting in place Alabama voting maps from 2023 that would badly disadvantage the state's black voters and relying on its updates. See, I'm putting that in quotation marks in Louisiana v. Calais to make it all but impossible to challenge racially discriminatory voting maps ever again. Mark, you wrote on this just a week ago and said that this case would actually dare the U.S. supreme Court and the right wing justices on the court to say what it really thinks about black people's voting rights. What were you trying to warn us about in that piece and what has indeed come to pass since then?

[B]

So my piece a week ago, what a long week. It's been said that this would sort of give the Supreme Court's Republican appointed justices an opportunity to say whether or not they have truly abandoned the field of voting rights and fully annihilated voting rights for racial minorities and given states, particularly Southern Republican legislatures, a free hand to entrench white supremacy through brutal racial gerrymanders. And the Republican appointed justices have done exactly that. In this barely reasoned unsigned shadow docket order. The Republican appointed justices have allowed Alabama to impose at the very last minute, as people are already voting in an ongoing primary election, a map that eliminates one very diverse opportunity district for racial minorities that's currently represented by a black Democrat and just carve it up in a way that gives white voters total control over that district and they are certain to elect a white Republican instead. And so this badly dilutes the political representation of black Alabamians. It gives Republicans yet another seat in the House of Representatives. So another score for Republicans in the ongoing gerrymandering wars. And I think it sends a very clear message to lower courts that the recent decision in Louisiana v. Calais, which we'll get into it, didn't just sort of soften or weaken the Voting Rights Act. It stands for the proposition that there are no more black voting rights. That courts should never try to protect racial minorities who are being targeted for electoral disadvantage because of their skin color. That the Supreme Court's just not going to allow it to happen. And in fact, this is maybe the most perverse part of the decision. The only kind of race discrimination in voting that this Supreme Court cares about is when states give too much political representation to black and brown communities. I'm putting too much in air quotes there. Right. And that state legislatures cannot go out of their way to try to protect and ensure black communities do have this representation because that's racist against white voters and racism against white voters. This Supreme Court is highly attuned to and sees everywhere and is always going to guard against. But racism against black and brown voters, that's not just. Okay. That may in fact be required by the law in the Constitution, according to the. The Supreme Court.

[A]

Right. And it's interesting, I guess, and worth flagging that in this very brief, perfunctory, to the point of laughable order. We do get the words colorblind Constitution also in air quotes, except it's really there. This is a notion that is now like the lodestar that the Constitution wants to make sure that white people don't get discriminated against. I want to talk about this case for a minute because it's easy to forget that this is a case we actually know pretty well, and we covered it on this show when it was argued at the court. So can you take us back to the origins of this particular litigation? Cause it's been quite a ride.

[B]

So after the 2020 census, Alabama redrew its congressional districts and only included one district that would likely be represented by a black politician and a black Democrat, in fact. And a bunch of Alabama voters of color sued and said, this is racist. You've packed almost all of the black people into one single district. You've dispersed the rest throughout majority white districts where they won't have any packaging power. Black people represent about a third of the population of this state. And so this is unlawful under the Voting Rights act, which at that point in time required equal opportunities for people of color, including, as the Supreme Court had long interpreted it, in redistricting and would at that point guard against a state doing exactly this. Right. Going after communities of color and diluting their votes in order to help elect white Republicans. So district court blocked that map. The Supreme Court affirmed that district court decision decision in 2023 in a case called Allen v. Milligan, 5 to 4 decision, with John Roberts and Brett Kavanaugh joining the three liberals said this decision is correct. Alabama did unlawfully dilute the votes of its black residents. And it does need to create a second opportunity district that is more diverse and that stands a real chance of electing a black representative. So the district court gave the legislature a chance to draw that map. The legislature refused. It defied the Supreme Court, Basically, it refused to draw a fair map. So the district court imposed a map that created that second opportun, and the Supreme Court allowed that to happen. The Supreme Court had no problem with that because of course it was implementing its decision. And then we wait, we wait for a few years for the Supreme Court to decide. Louisiana versus Calais. And of course in Louisiana versus Calais, the Supreme Court guts what had remained of the Voting Rights act and allows states to resume ruthless racial gerrymandering. And at that point, Alabama had been lying in wait and it sprung out and said, hey, now that there's basically no more vra, we can implement this super racist map that we drew in 2023 that the district court wouldn't allow us to draw. So Alabama goes up to the Supreme Court. This is tortured, but I think it's important because it shows the gamesmanship by the state. Alabama goes up to the Supreme Court, says, hey, you should make the district court reconsider this decision. After Calais, the Supreme Court agrees, 6 to 3. The district court says, well, we've reconsidered it, but we don't have anything to say that's different because we found that you intentionally discriminated against black voters. And we'll talk about why. There's a lot of evidence on the record to show this. And the district court said Calais was a Voting Rights act case, it wasn't a constitutional case, said that intentional racial discrimination is still unlawful. So we're gonna stand by our decision. And then Alabama went back to the U.S. supreme Court. And then on Tuesday, the Supreme Court basically just overruled the district court, said, eh, we don't really see any intentional discrimination. We think you defied our decision in Calais. We are going to allow Alabama to implement its racist map, eliminating one opportunity district for black voters, eliminating one black democratic representative. And this is really important, unleashing just massive chaos on Alabama's prim, which are already in progress because now hundreds of thousands of voters have to be reassigned to new districts. And the state has previously represented that. That would take months. Now it has days to do it.

[A]

Okay, so one important thing and You've said this, but I think we have to say it explicitly is that Alabama cynically and in violation of, you know, Supreme Court orders and lower court orders played this like a fiddle, right? Like Alabama waited. There was ample opportunity to get this sorted so that it wasn't happen in an emergency posture. They waited it out, as you noted, Mark, immediately after Calais comes down and Calais is like, this has nothing to do with, you know, Milligan. That's a whole different thing, right? Alabama's like, hey, I guess Milligan's over and like, let's go. At the time Justice Sotomayor, you mentioned this got resolved very quickly again, perfunctorily. And Justice Sotomayor warned at the time, right. This is right after Calais comes down. Oh, Alabama's doing it. And the court ignores her.

[B]

Right. Justice Sotomayor warns correctly that it's a pretty bad omen that Alabama is going to try to re implement this map and that the Supreme Court at this point had told the district court, you know, reconsider your decision. Right. At least give the legislature some wiggle room here. Because Calais on its own terms had nothing to do with the standards in this case, the operative standards. Because again, I can't say this enough. Calais was about the Voting Rights Act. Calais was not about intentional discrimination. Right. The question was, was in Calais, can a legislature be faulted for diluting racial minorities representation in a way that is not intentionally discriminatory? So statutory case, not directly about intentional discrimination, but this Alabama case is about racism. Like plain and simple. Like this is a case about a legislature that we have a lot of evidence on the record, went after black voters because they are black, kept white voters political representation as much as possible because they are white, exalted the European heritage of these white communities that had to be kept together and given political representation while totally dismissing the interests of black voters. And it's a constitutional case first and foremost. Most importantly here, this became a case about intentional race discrimination. Alito in his Calais opinion said that wasn't this, right, that he wasn't touching those issues. He was just kind of updating the Voting Rights Act. And he said he wasn't overturning Milligan from 2023. He said, oh no, we're not overturning Milligan. This is a different case, you know, different questions, different facts. And now what we have seen is that the court really overturned Milligan, you know, from 2023, three long years ago. And the court has imported these sort of jury rigged standards against black voters that it created in Calais, it's imported those into the constitutional context. So that's no longer just a Voting Rights act case. It is now also, in effect, a constitutional case that guts what had remained of protections under the 14th and 15th Amendments for Black and brown voters who were targeted through racial gerrymandering.

[A]

And it's worth saying, I think, that we used to always say, sort of the template for how the Roberts court would wreak havoc was they do it small and they do it big. Right. And it takes years and years. And then they say, oh, it's inevitable. We did the little thing. And I think you're pointing to this new pattern, particularly in these voting rights cases, where the court says it's doing it small and then does it big and says, oh, this is entirely and utterly, completely controlled by the thing that was supposed to be cabined, as you say, to the Voting Rights Act. So it is a very, very gaslighting move for a court that was already gaslighting. I would like you to just explain to us, to the degree that you are able, and this is hard, really hard, after Tuesday night's order, what challengers would have to show now under the new tweaks to the tests to prevail on a claim, or perhaps better, I want you to tell us what new barriers has the Supreme Court now erected for plaintiffs to ever again prevail in a case that argues that a state was using racially discriminatory practices to constrain their votes?

[B]

I think the best way to answer that is to tell you what wasn't enough proof in this case for the plaintiffs to prevail. Right. So in this case, the Alabama Legislature

[A]

Slate plus members can access our conversation in full. Right now, we are tracking the final chaotic weeks of the term in real time, explaining the decisions as they land this opinionpalooza. Visit slate.com amicusplus to get access wherever you listen. To get all of our opinionpalooza extras across slate.com and here on Amicus. Go to slate.com amicusplus you can also subscribe to to Slate plus directly from the Amicus show page on Apple Podcasts and on Spotify. We'll be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care.