How the Supreme Court Should Respond to Alabama’s Defiance

A panel of three federal judges last week issued a scathing opinion directing the state of Alabama to comply with the Voting Rights Act. It was the latest development in a saga in which the state has repeatedly flouted the requirements of the Voting Rights Act and the rulings of federal courts, up to and including the Supreme Court.

Despite the judges’ admonishment, Alabama did not back down. In fact, it doubled down, immediately filing a notice of appeal and asking first the lower court and then the Supreme Court to put the ruling against it on hold (to preserve the possibility of using the state legislature’s map).

Alabama’s appeal confronts the Supreme Court with a profound test. The case may appear to involve a set of technical questions about one state’s legislative map. But it is more fundamentally about whether the Supreme Court should still be viewed as in any sense standing outside politics. Facing a crisis in public confidence, the court should take the opportunity to regain some of its rapidly dwindling legitimacy by sending a clear message that even its ideological fellow travelers do not get a pass from abiding by its rulings.

Alabama’s conduct in this case also reveals just how serious a problem discrimination against Black voters remains — and thus how vital the Voting Rights Act is today. The Supreme Court’s response will thus have implications beyond the bounds of this case — and it will be measured for what it reveals about both the court’s legitimacy and the future of the Voting Rights Act.

For the Alabama appeal, the Supreme Court will probably need to respond quickly. The state has represented that it must finalize its congressional districts by early October. If the court blesses Alabama’s conduct and allows the state’s defiance to stand — either after briefing and oral argument or by issuing a stay on the “shadow docket” and allowing the state’s discriminatory map to remain in place, as it did in an earlier stage of this very litigation — it will be announcing to the world that its opinions need not be heeded. If that happens, defiance by other political actors, both left and right, can be expected, and will be justified.

The court’s June decision in Allen v. Milligan was a rare and welcome surprise from a court whose recent track record has otherwise involved remaking broad swaths of the law at breakneck speed. In this case, a 5-4 majority rejected Alabama’s effort to roll back the protections of the Voting Rights Act, instead ruling that Alabama’s racially gerrymandered congressional map was likely unlawful. By doing so, it affirmed the ruling of the same three-judge panel (which includes two appointees of former President Donald Trump) that rebuked the state last week.