Skip to content
Search

Latest Stories

Top Stories

Gerrymandering the Constitution

Opinion

Supreme Court justices

The Supreme Court wants to deny state courts a power it created for itself.

Pool/Getty Images

Goldstone’s most recent book is "On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights."

The Roberts court’s record for safeguarding voting rights is hardly impressive. Rather than view access to the ballot box as fundamental to a healthy democracy, the Supreme Court’s conservative majority prefers to pretend that blatant attempts to deny the vote to poorer, nonwhite Americans are “political” activities and therefore beyond the purview of what Alexander Hamilton assured Americans would be the people’s branch of government.

Whether in Shelby County v. Holder, where Chief Justice John Roberts blithely disemboweled the 1965 Voting Rights Act, or more recently, when a 5-4 majority (which ironically did not include Roberts) refused to void an Alabama redistricting plan that minimized the influence of Black voters, the court has sided with an aggressive conservative base that aims to keep control of government by limiting the rights of groups that vote against them.

It therefore came as a bit of surprise when the court refused, at least for the moment, to grant emergency motions by Republicans in Pennsylvania and North Carolina to reinstate gerrymandered redistricting maps that had been disallowed by their state’s supreme courts. The Pennsylvania petition was rejected because the case was already being heard in federal court, but no such technicality existed in the North Carolina case.


Although the majority did not issue a written opinion, Samuel Alito wrote a dissent in which Neil Gorsuch and Clarence Thomas joined. Brett Kavanaugh accepted Alito’s reasoning but voted with the majority because he thought primary elections in the two states were too near at hand to be implementing a new districting map.

North Carolina Republicans advanced a novel and unprecedented argument, which Alito and his fellows accepted: Because Article I, Section 4 of the U.S. Constitution specifically states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ” (Alito’s italics), state supreme courts were not empowered to alter any redistricting plan approved by a state’s legislature.

“The applicants will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the congressional map in their State,” he concluded. But Alito was forced to admit that the North Carolina court did not arbitrarily overrule the General Assembly; rather, it “justified its actions on the ground that the General Assembly’s maps constituted partisan gerrymanders and thus violated a congeries of state constitutional provisions.” (My italics.).

In other words, the North Carolina Supreme Court ruled that because its legislature had violated the state Constitution in drawing a discriminatory redistricting map, it had the power to declare it void, a power commonly referred to as “judicial review.” But Alito and his brethren countered that because that specific power is not granted to state supreme courts in Article I, Section 4, even the most egregious gerrymander should be allowed to stand. (One is forced to wonder if the dissenting justices would have been so cavalier if it had been Republicans who were being gerrymandered rather than Democrats.)

What Alito seems to have forgotten is that another court has assumed the power to act as a constitutional check on the legislature despite not being granted that power in the Constitution.

His.

The power of the Supreme Court to overrule Congress and either strike down a law or alter its application appears nowhere in Article III nor anywhere else in the Constitution. As the late Justice Antonin Scalia once noted, “The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means, or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that, in the Court’s view, the statutes do not comport with the Constitution. It doesn’t say that anywhere in the Constitution. We made it up.”

Made it up indeed. At no point during the Constitutional Convention did the delegates come out in favor of allowing the Supreme Court to overturn a law passed by Congress and signed by the president. They did briefly discuss a “council of revision” wherein Supreme Court justices and the president would approve or reject bills passed by Congress, but that notion was rejected out of hand. In fact, the two most respected legal theorists of the day, William Blackstone and Baron de Montesquieu, both of whom had been widely read by the delegates, each counseled that the judiciary should never be able to overrule the legislature. Judicial review wasn’t backdoored into American jurisprudence until 1803, when Chief Justice John Marshall in Marbury v. Madison wrote, “It is emphatically the duty of the Judicial Department to say what the law is.”

But to Scalia, who often boasted of his “textualist” philosophy, Marshall’s convenient end run around the judiciary’s limitations was totally appropriate. “Now, we made it up very sensibly,” Scalia added, “because we reasoned that a Constitution is a law, sort of a super-law … and determining what the law means is the job of courts.”

Judicial review is now the most potent weapon in the court’s arsenal and no justice would dare suggest that it was inappropriately acquired. Nonetheless, Alito and his fellow dissenters would deny to states the very power that he and his fellow conservatives have wielded to such advantage in cases such as Shelby County and Citizens United.

Lest comfort be taken that Alito’s dissent was a minority opinion, Kavanaugh is anxious to revisit this issue in a future case and Amy Coney Barrett could hardly be considered a reliable advocate for voting rights and racial justice. It isn’t unlikely that when Justices Kavanaugh and Barrett, both of whom for the moment seem anxious to demonstrate their appointments were not illegitimate, become more comfortable on the high bench, their seeming reasonableness and openness to alternative viewpoints will evaporate.

If that occurs, the United States will take yet another step back from free and fair elections and the democracy it claims to be.

Read More

The Critical Value of Indigenous Climate Stewardship

As the COP 30 nears, Indigenous-led conservation offers the best hope to protect the Amazon rainforest and stabilize the global climate system.

Getty Images, photography by Ulrich Hollmann

The Critical Value of Indigenous Climate Stewardship

In August, I traveled by bus, small plane, and canoe to the sacred headwaters of the Amazon, in Ecuador. It’s a place with very few roads, yet like many areas in the rainforest, foreign business interests have made contact with its peoples and in just the last decade have rapidly changed the landscape, scarring it with mines or clearcutting for cattle ranching.

The Amazon Rainforest is rightly called the “lungs of the planet.” It stores approximately 56.8 billion metric tons of carbon, equivalent to nearly twice the world’s yearly carbon emissions. With more than 2,500 tree species that account for roughly one-third of all tropical trees on earth, the Amazon stores the equivalent to 10–15 years of all global fossil fuel emissions. The "flying rivers" generated by the forest affect precipitation patterns in the United States, as well our food supply chains, and scientists are warning that in the face of accelerating climate change, deforestation, drought, and fire, the Amazon stands at a perilous tipping point.

Keep ReadingShow less
Indiana Republicans Could Lose at the Ballot over Redistricting Plan
Image generated by IVN staff

Indiana Republicans Could Lose at the Ballot over Redistricting Plan

INDIANAPOLIS, Ind. -- As Indiana Republicans weigh whether to call a special session to redraw the state’s congressional map, a new Unite America poll shows that voters overwhelmingly oppose the idea — including a majority of GOP primary voters.

The survey, conducted October 7–9 by 3D Strategic Research, found that 44% of Hoosiers oppose mid-decade redistricting while only 31% support it. After hearing balanced arguments from both sides, opposition jumped to 69%, with just 21% still in favor.

Keep ReadingShow less
Draining the Safeguards

Donald Trump

Jabin Botsford/The Washington Post via Getty Images

Draining the Safeguards

A loyalty-forward government has formed right before our eyes. Jared Kushner has been tapped to help lead the Israel–Hamas talks. He wasn’t chosen for his expertise in delicate diplomacy; he was chosen because he’s the president’s son-in-law—and because some around him seem to treat his Jewish identity as if that alone were a qualification aligned with a pro-Israel posture. Identity and proximity are not expertise. That’d be like putting Linda McMahon in charge of the Department of Education because she once (seemingly!) went to school. Oh wait, we did that too. What are we doing here?

Zoom out from the Kushner headline and the method snaps into focus. First, elevate friends, family, donors, and media allies into roles once filled by deeply vetted and experienced professionals. Second, lean on “acting” titles and novel personnel rules to dodge scrutiny and degrade accountability. Third, purge the referees—advisory boards, inspectors general, nonpartisan civil servants—so the only guardrail left is personal loyalty. It’s governing by who you know, not what you know.

Keep ReadingShow less
Dwight Eisenhower
Without leaders like Dwight Eisenhower we will once again find ourselves on the precipice of a "world devoid of hope, freedom, economic stability, morals, values and human decency," writes M. Dane Waters.
Moore/Getty Images

The General's Warning: What Eisenhower Knew About Power

On September 28, 2025, President Trump ordered the deployment of National Guard troops to American cities for domestic law enforcement, with Defense Secretary Pete Hegseth authorizing 200 Oregon National Guard members for a 60-day deployment to Portland. A federal judge temporarily blocked the move, calling the justification for military deployment "simply untethered to the facts." When the administration tried to circumvent the order by sending troops from other states, the judge expanded her ruling, blocking any federalized National Guard deployment to Oregon.

That declaration marks a break with the boundary Dwight Eisenhower insisted upon between national defense and domestic politics. His 1961 farewell address warned against exactly this misuse of power.

Keep ReadingShow less