Don’t Celebrate Yet: Justices Set Table for Civil Rights Rollback

The US Supreme Court has stepped back from the brink of undermining democracy and individual rights in recent rulings, including decisions supporting Native American Tribes’ sovereignty and minority voting rights.

But while these individual decisions can be celebrated, a close analysis reveals reasons for concern for the potential blockbuster decisions remaining this month and in future terms.

Even when conservative justices support progressive positions, their writings lay the groundwork for shifting the legal landscape in radically conservative directions.

In the Alabama voting rights case, Allen v. Milligan, Alabama had put forward a truly audacious set of arguments defending its map largely packing its 27% Black population into one of seven Congressional districts.

One argument was that the 15th Amendment of the Constitution, which says the right to vote “shall not be denied or abridged” on account of race, in fact prohibits any consideration of race, even if race is being taken into account to stop racial gerrymandering.

Justice Ketanji Brown Jackson illustrated the absurdity of this argument at oral argument. She pointed out that the framers had an explicitly race-conscious goal in writing the 14th and 15th Amendments after the Civil War: “trying to ensure that people who had been discriminated against … were actually brought equal to everyone else in society.”

But hold the champagne. Justice Clarence Thomas wrote in dissent that even if Congress has the power to authorize race-based redistricting to offset the effect of prior racially-biased redistricting now—which he denied—“the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

This is the same type of argument that the court previously accepted to dismantle another key part of the Voting Rights Act. The court ruled in 2013 in Shelby County v. Holder that the requirement that the Department of Justice preclear changes to election rules of states that had a history of discriminating against minorities had exceeded its time limit. Within months, most of the previously covered states had enacted new voter suppression measures.

There is no time limit on the application of the 14th Amendment, yet this strange argument may win the day. Chief Justice John Roberts, who joined the liberal justices in Milligan, wrote the Shelby County majority decision.

The fifth vote rejecting the radical interpretations of the Constitution in the Alabama case was provided by Justice Brett Kavanaugh. Kavanaugh wrote that, for procedural reasons, he would not consider Thomas’s argument “at this time.” He leaves open that he could vote to completely annihilate the Voting Rights Act in future cases.

Another case that was a seeming victory for progressive values was Health & Hospital Co v. Talevski. In that case, a nursing home had been using drugs on a patient, not to meet his medical needs, but to chemically restrain him for the nursing home’s convenience.

He sued under a vital provision known as section 1983, which creates the right to sue when a person’s rights or privileges have been harmed by a state or an agent of the state.

Section 1983, more than constitutional challenges, protects the rights of individuals against state overreach and malfeasance.

The defendants, joined by the state of Indiana, had argued that section 1983 should not apply if Congress provides any other remedies—however trivial—for those injured by state agents.

Writing for a seven-justice majority, Jackson rejected this argument, saying that just because Congress provides remedies for those who are injured does not mean it cuts off the key remedy that protects individuals: section 1983.

A seven-justice majority seems pretty sturdy but Justice Neil Gorsuch wrote a concurrence that was joined by Roberts and Justice Amy Coney Barrett. Gorsuch, like Kavanaugh in the previous case, kept some of these arguments alive “for another day.”

Adding in the two dissenting justices, Justice Samuel Alito and Thomas, that suggests there could be five votes to cut section 1983 back in the future.

Most recently on June 15, in Haaland v. Brackeen, the same seven-justice majority upheld the Indian Child Welfare Act from constitutional attack.

The court again rejected novel and extreme arguments. One was that by giving preference to Indian families and tribes to keep their children, the statute unconstitutionally discriminates on the basis of race.

Once again, while finding in favor of the Indian tribes, the court refused to address the racial discrimination argument, this time on the basis of standing. Once again, Kavanaugh wrote separately to “emphasize” that the court has not addressed the racial discrimination question.

This is not simply a matter of “you win some, you lose some.” That racial discrimination argument holds the potential to upend the special, Congressionally-defined relationship of Native Americans with the federal government.

For instance, if it is racial discrimination to give Native American tribes priority in adopting Native American babies, then how can the myriad of other special rules—including everything from gaming rights and tribal self-governance to health-care clinics specifically addressing native needs—stand up to constitutional scrutiny?

The claim that ICWA racially discriminates is contrary to well-established Supreme Court precedent that legislation that treats Native Americans differently is a political distinction, not a racial one. This is because tribes are a quasi-sovereign group and because tribes themselves determine who constitutes their members.

Kavanaugh’s concurrence dovetails with the ultimate goal of advocates who brought this case—if ICWA is racially discriminatory, that would open the door to challenge Native American mineral rights, land rights, and so on.

Haaland v. Brackeen is representative of the long game that the conservative justices are playing: give a small victory to liberal causes, gain the appearance of evenhanded justice, while at the same time set the stage for a future radical redefinition of Americans’ civil rights.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.

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