The Supreme Court is back in session this week, and the docket for the new term includes two cases that could fundamentally shift the state of democracy in the United States.
The nine justices will hear arguments on one case involving the Voting Rights Act and its protections for minority voters. The other tests whether state courts can remain a check on legislative authority when it comes to making election laws.
These and other cases will further test a court that continues to receive poor marks from the American public, while the spouse of one justice was recently interviewed by the Jan. 6 committee regarding her role in attempts to overturn the 2020 presidential election.
So it’s not going to be a quiet session for the nation’s highest court.
The first of these two cases to be heard by the court is Merrill v. Milligan and while it concerns redistricting in Alabama, it’s really about the Voting Rights Act. On Tuesday, the justices are hearing arguments over whether the state engaged in an illegal racial gerrymander by drawing a new congressional map that is expected to result in just one of seven districts electing a Black person to the House. More than one-quarter of the state population is Black, so opponents of the new maps argue the districts should be changed to rebalance congressional representation.
In January, a three-judge federal panel tossed out the map, ruling it does in fact violate the VRA. However, the Supreme Court ruled 5-4 that the map should be allowed to stand while the justices consider the case.
Section 2 of the Voting Rights Act bans states from engaging in election practices that discriminate on the basis of race. The state of Alabama argues there was no intent to do so and that the map should be allowed to stand.
But Eric Holder, who was attorney general under President Barack Obama and now runs a Democratic redistricting organization, believes the Alabama map is a “textbook violation” of Section 2, and the leader of the Lawyers’ Committee for Civil Rights Under the Law warned about further erosion of the VRA.
“If the Court accepts Alabama’s argument, it will be rejecting 40 years of precedent and effectively telling voters of color that the Voting Rights Act provides no remedy for racial discrimination in the redistricting process,” Damon Hewitt, president of the Lawyers’ Committee. “Such a decision will further neuter the Voting Rights Act, which has for decades helped to ensure that Black voters and other voters can exercise political power and self-determination in choosing their representatives.”
The Supreme Court has already stripped away some provisions of the Voting Rights Act. In the 2013 case Shelby County v. Holder, the court ruled that Section 4 of the VRA was unconstitutional, thereby ending the practice of “preclearance.” The VRA, first passed in 1965, required states with a history of racial discrimination to get prior approval from the Justice Department before changing any election laws.
Democrats in Congress have been trying to codify a new version of preclearance that would pass the court’s constitutionality test, but the legislation has been blocked by Senate Republicans.
The second democracy-defining case to be heard this term, Moore v. Harper, may alter the system of checks and balances at the state level.
This case originated in North Carolina, where the state Supreme Court knocked down the congressional map drawn by legislators, ruling it violated the state Constitution. The lawmakers who brought the case are using a recently developed conservative argument known as the “independent state legislature theory.” Adherents point to a line in the U.S. Constitution – stating that rules governing elections “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”
As they note, that clause makes no mention of oversight by state or federal courts.
Opponents say that language defies the work of the Founding Fathers.
“Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution,” former U.S. Judge J. Michael Luttig wrote in The Atlantic.
These cases are being heard in the wake of new polling that shows Americans’ trust in the Supreme Court to be at a historic low.
Just 40 percent of Americans say they trust the judicial branch of the federal government and 58 percent say they disapprove of the work the court is doing. Both numbers are the worst since Gallup began asking those questions in 1972.
Last week, Ginni Thomas, a conservative activist and the wife of Justice Clarence Thomas, was interviewed by the Jan. 6 committee. Members of the panel wanted to question her about her efforts to support actions designed to overturn the 2020 election, both through state leaders and the White House.
The interview took place behind closed doors, and Thomas reportedly answered the members’ questions while stating her work is separate from her husband’s service on the court.
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.