On June 8, 2023, the United States Supreme Court issued its opinion in Allen v. Milligan, holding that Alabama’s congressional redistricting scheme likely violated the Voting Rights Act. The state had cleverly (or so it thought) carved out a single Black-majority district, intentionally diluting Black representation in a state where 1 in 4 residents is Black. Alabama had relied on this same map in the 2022 elections, and given the current makeup of the court, they expected it to be rubber-stamped. But in a surprise 5-4 ruling, the court agreed with a lower court decision finding that map to be discriminatory. They ordered Alabama to draw up a new map.
The last thing Alabama’s Republican-dominated legislature expected was to have their racist redistricting map repudiated by some of their own right-wing friends on the United States Supreme Court. The ruling was even more shocking as the court’s opinion was authored by Chief Justice John Roberts, who had previously gutted the most significant provisions of the Voting Rights Act in the case of Shelby County v. Holder. So Alabama Republicans huddled together and hours before the deadline produced another map, again containing a single Black majority district.
In other words, they completely ignored the Supreme Court’s ruling, much as they had ignored a much different Supreme Court’s ruling in the 1954 case of Brown v. Board of Education, which ordered that the state’s schools be integrated. As noted by Jane Timm, reporting for NBC news, Republican Gov. Kay Ivey heaped praise on the legislature, declaring it “knows our state, our people and our districts better than the federal courts or activist groups.”
The reaction of the national Republican Party to this blatant defiance of the court by their Alabama compatriots has been uniform: dead silence. As Adam Serwer, writing for The Atlantic, observes, this deliberate ignoring of the law when it doesn’t happen to suit their needs fits a pattern with conservatives, “whose view is that the only legitimate outcomes—or laws, or governments, or presidents, or Supreme Court rulings—are conservative ones.”
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Serwer notes that The Wall Street Journal editorial page—one of the primary mouthpieces of the right—has virulently criticized Democrats who have harshly assessed the court’s obvious right-wing politicization and apparent obliviousness toward following ethical standards. This defensiveness on the Journal’s part has only increased after multiple recent revelations about the court’s conservatives’ evident corruption and conflicts of interest. Because the Journal now has a vested interest in defending the court’s integrity (the Allen ruling was an anomaly from this year’s otherwise radical and reactionary slate of court rulings), it has assailed Democratic efforts to impose some type of ethical standards on the justices as an affront to the court’s “legitimacy.” As Serwer notes:
What the Roberts Court’s defenders truly fear is the political strength of a critique of the Court as overreaching and out of touch with the majority of the electorate, because as conservatives well understand, that is a critique that has the power to influence elections and ultimately shape the Court itself. They understand this because that is one reason the 6–3 right-wing majority on the Court came to be in the first place. This is why questioning the Court’s legal reasoning and sweeping power is a privilege that must be exclusively reserved for conservatives.
As Serwer points out, if Republicans were actually concerned about the “legitimacy” of this Supreme Court, they’d be up in arms about their Alabama brethren’s open defiance of it. The reason there is virtually no criticism (from The Wall Street Journal or otherwise) of Alabama thumbing its nose at Roberts’ ruling is, as Serwer views it, a selective perception by conservatives about how this nation’s laws should be applied. Because Alabama’s legislature is violating the law here to further conservative causes, there is no objection from the right.
It is clear the right that views the Court as a political instrument for imposing conservative policy, and when the Court fails to heed its obligation to do so, they can simply ignore it. This is consistent with the movement’s Trumpist turn toward the belief that the legitimacy of any practice or institution—elections, fundamental freedoms, the state itself—is conferred not by the consent of the governed but by the consent of the right. You have an inalienable access to the franchise as long as you vote Republican. You have free speech as long as you say conservative things. The free market is free only when it leads to conservative outcomes. The Supreme Court’s rulings are the law of the land, except if those rulings are not what conservatives want.
In fact, we see this type of Republican hypocrisy toward the “law” demonstrated over and over again: The GOP is the party of “law and order” except when it’s applied to Donald Trump’s criminal handling of classified documents or sordid history of sexual assault. It’s the party of “legality” except when it involves blatantly lying about your qualifications to be a member of Congress. It’s the party of “law enforcement” except when it’s applied to a horde of Trump supporters attacking police while assaulting the nation’s Capitol.
So, as Serwer observes, Alabama’s actions are hardly surprising. Rather, they’re completely in keeping with a view that the law only matters when it dovetails with right-wing interests.
Maybe Alabama is bluffing. Or maybe it simply doesn’t believe that someone like Roberts, who has been dreaming of gutting the Voting Rights Act since he was in his 20s, really means it. Or perhaps Alabama is reminding the Republican-appointed justices that the Court’s legitimacy depends on its obedience to the conservative movement, whose view is that the only legitimate outcomes—or laws, or governments, or presidents, or Supreme Court rulings—are conservative ones.
It’s not hard to imagine the furious reaction by Republicans to a Democratic governor, for example, refusing to abide by the Supreme Court’s edicts eliminating reproductive rights or affirmative action policies within his or her state’s borders. The recriminations would be loud and constant, the accusations vitriolic. There would be demands on Fox News for federal intervention, armed or otherwise.
But for Alabama’s outright defiance of the Supreme Court’s order to fairly redraw its districts? Only the sound of crickets.
The plaintiffs in the original litigation, now back in the hands of the Northern District of Alabama, have been directed by the court to file their objections to the state’s revised maps no later than July 28, with a hearing on any objections scheduled for Aug. 14. However the district court rules, the matter is expected to be appealed once more to the Supreme Court.
