The US Constitution is more than two centuries old. For most of that time, its purpose has been to maintain representative government and the peaceful transfer of power. That’s started to break down in recent years. Politicians try to win elections by gerrymandering voters, rather than convincing them. More and more power has been consolidated in the executive branch, bypassing traditional checks and balances. Melissa Murray joins host Alex Lovit to talk about the Supreme Court’s role in this democratic decline and how the Constitution can be a roadmap to reverse it. Melissa Murray is the Frederick I. and Grace Stokes Professor of Law and the faculty director of the Birnbaum Women’s Leadership Center at New York University. She cohosts the popular Supreme Court podcast, Strict Scrutiny. She has written several books, most recently The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader. https://crooked.com/podcast-series/strict-scrutiny/ https://www.simonandschuster.com/books/The-U-S-Constitution/Melissa-Murray/9781668221938
Melissa Murray:
We have Congress on the couch. We have a court that is doing things that consolidate its own power. And then we have an executive that is asserting the most muscular vision of executive power that we've seen in two or three generations. That is not constitutional design as the framers envisioned it.
Alex Lovit:
The United States turns 250 this year. That's counting from the Declaration of Independence. The Constitution, you know that thing that says "We the people," that came a little later. This year, it's 238 years young. A lot has happened over those 238 years and we've amended the Constitution 27 times, but the basic structure of our government hasn't changed. The framers thought that they could prevent tyranny by dividing power between the federal government and the states and within the national government among three branches.
One way to understand what's going wrong in American democracy today is to measure ourselves against the Constitution's yardstick and see how we're falling short, which is supposed to be what the Supreme Court is for, to make sure our country stays true to the Constitution. But what do we do when the Supreme Court falls down on the job? You're listening to The Context. It's a show from the Charles F. Kettering Foundation about how to get democracy to work for everyone and why that's so hard to do. I'm your host, Alex Lovit.
My guest today is Melissa Murray. Melissa is the Frederick I. and Grace Stokes Professor of Law at New York University and co-host of the Strict Scrutiny Podcast. The Constitution has its flaws. I'm looking at you electoral college. But like it or not, if we want to peacefully preserve democracy in the United States, the Constitution is what we have to work with. Lucky for us, Melissa says it actually gives us a lot of tools. Melissa Murray, welcome to The Context.
Melissa Murray:
Thanks so much for having me back.
Alex Lovit:
So let's start with a new book, The US Constitution: A Comprehensive and Annotated Guide for the Modern Reader. So your name's on the cover, but James Madison should get 5% credit here because it does include the full text of the Constitution.
Melissa Murray:
It does. It does. He's my co-author and collaborator. No one's more surprised than James to find me in this position.
Alex Lovit:
I found this book really helpful. You go through the Constitution section by section sometimes line by line and really explain what every part of it means. And for anyone out there, if you really want to reckon with the Constitution, this book is a great place to start. I'm sure this isn't your first time reckoning with the Constitution, but you did just go through this exercise of really figuring out what to say about each part of it. So I wanted to start off by just asking you, what's the best and worst parts of the Constitution?
Melissa Murray:
What a good question. So the best parts of the Constitution, I think the preamble is one of the best parts. It wasn't obvious that the preamble would be the way that it is written. They initially started off by listing the states and then they decided on, "We the people," which is truly, I think, the perfect way to begin a document that goes about the business of trying to structure the first modern democracy. And it really is both rhetorical but also purposeful and interesting and the choice is really, I think, meaningful.
So I think that's one of the best parts. I think the 14th Amendment is another great part. This was an effort post Civil War to renegotiate the constitutional order, recognizing that what had preceded it, the original Constitution and all of the Amendments up to the 13th Amendment maybe had not quite secured rights for everyone. And in the wake of the Civil War and the possibility of the South trying to resurrect slavery under other guises, the 14th Amendment really comes in to truly make us a multiracial, multi faith democracy. So I think that's really fantastic.
I also think that a sort of under-sung aspect of the Constitution are what I call the Populist Amendment. So these are the 16th through 20th Amendments and these are ratified at the height of the gilded age, a time when the people are kind of fed up with oligarchy and the consolidation of wealth in the hands of a few. And they really decide to take the reins of constitutional change. They agitate for an income tax because they're tired of tariffs, which are regressive and disproportionately impact the working classes and they lobby for a progressive income tax and they get it. They lobby for the popular election of senators and they get it. They then lobby for prohibition, they get that, they think better of it. And then with the 19th Amendment, they double the size of the electorate by enfranchising women. So those four really are a testament to what we the people can do.
The worst parts of the Constitution, there are a number of references of sub rosa references to slavery in the original Constitution maintaining the transatlantic slave trade until 1808. There's of course the many compromises on representation to accommodate slavery and the authority of slave states within the Union. There are also, I think, nods to the framer's real distrust of the people. These were elite guys with lots of education for the time and they didn't really trust the general populous. So there are all of these compromises throughout the structure of the Constitution to limit what they might have called mobocracy. So the fact that we didn't get direct election of senators until the 17th Amendment, the fact that we have an electoral college that selects the president as opposed to a popular election are all the residue of that distrust.
Alex Lovit:
You just cited a number of the Amendments as among your favorite parts of the Constitution. So of course, if you're just looking at the original Constitution, that's only half of the story. In fact, in your book, you're basically halfway through the book if you just stop at the original Constitution. And the Amendments have come, you just mentioned a couple of waves. They've tended to come in waves.
Melissa Murray:
Yeah.
Alex Lovit:
So there's the Bill of Rights, the original 10, and then the 11th and 12th come pretty quickly after that. Then 60 years goes by and then you get the Reconstruction Amendments. So the 13th, 14th, 15th, big Amendments there. And then again, another 50, 60 years goes by and then you get what you called the Populist Amendments. Then again, some time passes and then between a couple Amendments in the 30s, one in the 50s, but a wave again-
Melissa Murray:
Yeah.
Alex Lovit:
... in between 1961 and 1971, you get four Amendments. And then since 1971, we've had one in 1992 and no shade on the 27th Amendment, but maybe not the most consequential. So I guess my question is, why do you think these have come in waves like that and are we overdue? What would it take to get back in the habit of amending the Constitution?
Melissa Murray:
So we're going to come back to the 27th Amendment because I think you're giving this one short shrift. But you're right, there have been sort of these bursts of constitutional activity making constitutional meaning certainly. And why is that? I think one reason is that the framers made it hard to amend the Constitution. So this is by design. Amendments originate in Congress, they have to pass by a super majority of both houses and then they go to state legislatures and there have to be ratified by super majority of the states in order to become Amendments to the Constitution. It's hard to do that. It's hard to get a super majority to do anything as you can imagine. It's hard to do it on the national level, then also to do it on the state level and have to do it at three fourths of the states in order to actually have it happen.
So there's that. The idea behind making it so difficult is that these can't be itinerant principles. These have to be commitments that you're really hueing to. And almost like Odysseus lashing himself to the mast so that he doesn't change his mind when he hears the sirens. It can't be too easy to change because we would when it became inconvenient to have these kinds of commitments. So imagine in the height of the post 9/11 fright and fervor over security, it would've been very easy, I think, if it weren't so hard to amend the Constitution to change things to maybe prioritize safety and security over civil liberties in order to preserve public safety.
But the fact that the First Amendment exists, the fact that due process exists and these are constitutional commitments made it hard even in the face of really compelling circumstances to change. And so I think that's one reason. These commitments have to be ones that we are steadfast about. The other reason I think it is they've come in waves is because they're usually animated by a certain set of events. So the Bill of Rights Amendments, which are ratified right after the Constitution and the Amendments are proposed as the Constitution is being ratified, responds directly to the fact that there are those among the framers who don't think that simply dividing government and dividing government power is enough to secure the people from the threat of government tyranny.
There have to be explicit rights that the people are afforded and there have to be specific prohibitions on the government infringing on those rights. That's how we get the Bill of Rights. So it's responding to a perceived deficiency of the original Constitution. The Reconstruction Amendments obviously respond to enslavement and how to abolish enslavement in this country and move forward as a democracy in which the formerly enslaved are going to be members of the polity. And then we have the Populist Amendments which are basically responding to vast income inequality in the consolidation of wealth and the need for the people to take a more defined role in the democracy.
So there are just moments where I think constitutional meaning happens. In the 20th Century, you're right, it's a little more episodic, but I also think it responds to particular historic events. So the Amendments that limit the terms of a president, for example, respond to Franklin Roosevelt and the fact that he had four terms in office. The 25th Amendment, which shores up and closes some of the loopholes in Article 2 around presidential secession is a direct response to the assassination of John F. Kennedy and the lingering questions like, what if he had just been in a coma for five months as opposed to dying immediately on November 22nd, what would it mean for presidential secession?
So there are very particular events that prompt constitutional meaning-making. And then of course there's the Supreme Court. One reason why we may not have to take these kinds of formal steps is that the Court through its own interpretations of constitutional texts subtly and sometimes not so subtly change constitutional meaning in ways that affect constitutional change, even if it isn't a formal Amendment.
Alex Lovit:
Well, so I definitely want to ask you about that, but you said I was giving the 27th Amendment short shrift. Do you want to make a pitch for it?
Melissa Murray:
I sure do. So the 27th Amendment is actually first proposed along with the Amendments that become the Bill of Rights. There are actually 12 Amendments that are proposed. Only 10 of them are ratified. The 27th Amendment, which limits Congress from raising its compensation in any term where the voting Congress is still in session doesn't really get through. But a University of Texas student, Gregory Watson, was doing a term paper and he decided to do his term paper on Amendments that hadn't made it. And he comes across the failed Compensation Amendment and realizes that it's actually still on the books. It just sort of was lying dormant waiting for someone to do something.
So he writes a paper about it. The paper is not as successful as he would have liked. He gets a C on the paper. But he's thinking about this and like, this is a great idea. Why should Congress be able to raise its compensation and then engage in the benefit of that raise while they're still in session? This Amendment would prevent the appearance of self-dealing. So he gets to work and ultimately he gets an assist from a check-kiting scandal in the House of Representatives. So people are really pissed off about Congress and whether they're being financially responsible.
And this Amendment manages to secure the remaining votes it needs at the various state legislatures. And in 1992, more than 200 years after its first proposed, the 27th Amendment, the Compensation Amendment becomes part of the Constitution and Gregory Watson not only changes the Constitution, he gets his grade changed. The University of Texas at Austin decides that this paper is now worthy of an A.
Alex Lovit:
Yeah, it's a nice story. I guess for me, I think in an era of exploding campaign costs and insider trading in Congress, maybe official salary is not the main issue.
Melissa Murray:
It's a start.
Alex Lovit:
Yeah.
Melissa Murray:
It's a start.
Alex Lovit:
It's not a bad Amendment. So let me ask, you mentioned there that it's not just the official Amendments that change the Constitution, it's also how the same text can be interpreted differently over time. Can you just give an example of that? What is an example of the text didn't change, but how it interpreted changed and it really made an impact?
Melissa Murray:
So the Commerce Clause is a provision in Article 1. It assigns to Congress the authority to regulate interstate commerce. And it's meaning, at least at the beginning in the Marshall Court, is relatively robust. So John Marshall interprets this clause of the Constitution very robustly to afford the federal government and Congress specifically very broad powers to regulate a national economy. Marshall not only says that this gives Congress the authority to regulate commerce among the states, he defines commerce very broadly. So it's lots of things like everything that is involved in getting goods to market.
By the time we get to the gilded age, we're coming out of the American Civil War, there's this huge retrenchment on the rights of states and the Court is actually a quite regressive figure in this moment and it looks askance at the prospect of Congress having this broad authority over interstate commerce. So they never change the terms of the Commerce Clause, but they begin interpreting those terms in different ways. So rather than the sort of broad understanding of commerce, they specifically talk about commerce is getting goods to market and everything that precedes it, that's production and that's within the scope of state authority. That's not for a federal legislature.
If you allowed Congress to regulate that, they would basically have a police power that would run roughshod over the prerogatives of states. And that's basically how it goes until the Great Depression. And during the Great Depression, Franklin Roosevelt is trying to get the New Deal passed, which would require broad federal oversight over lots of key aspects of the national economy. The court initially is very reticent to do this, very hostile to the New Deal. In a case called Jones and Laughlin versus National Labor Relations Board, the Court has its famous switch in time that saves nine, saves the court from FDR's court packing scheme, and instead start looking at just all of the ways in which a company could be vertically integrated such that production and commerce run together.
And in this particular case, the steel industry in this particular company was vertically integrated in a way in which they were not only pulling the ore out of the ground, they were then refining it and then putting it on boats and sending it down the Monongahela River and all of these things, it was a very integrated enterprise. And the Court says, we can't just have these sort of artificial distinctions between production and commerce when it's all kind of one thing and one company is doing it.
In another case, Darby versus United States, the Court basically says that the kind of production that occurs with in interstate, if it has a relationship to interstate commerce, well, that's subject to federal regulation. And then the linchpin really comes in a case called Wickered versus Fillburn, which is a challenge to the Agricultural Adjustment Act. It says that this federal agency can basically set limits on the price of wheat, even wheat that's being grown and is only being used for consumption on the farm because if one farmer does it and then another farmer does it and another farmer does it, that intrastate consumption of wheat will obviously, in the aggregate, have real effects on interstate commerce and therefore Congress is allowed to reach it.
That's the way things are until roughly the 1990s when the court, again, in a case called United States versus Lopez and says if something is going to have an aggregate of impact on interstate commerce, it really has to be something that's economic in nature. And in this case, the challenged activity, the possession of a gun on school grounds was not deemed sufficiently economic to trigger interstate commerce. So nothing changes about the text. The Commerce Clause has never been different, but the Court's understanding of its terms has certainly shifted and oscillated.
Alex Lovit:
So in that story of the Court shifting one way, shifting another way over time, over the course of American history, how does the current Court stack up? So we have kind of the super majority of conservatives, Republican appointees.
Melissa Murray:
Yeah.
Alex Lovit:
Is this just kind of the normal back and forth or is this something different?
Melissa Murray:
I think this is something different. The Court has always been a more conservative/regressive institution relative to the other branches. So during the Reconstruction Era, Congress was the home of the radical Republicans who were really trying to get the Reconstruction Amendments passed and integrated and put into practice through congressional legislation. You have the Court doing things like Plessy versus Ferguson and blessing separate but equal.
But that is not to say that this particular court, the Roberts Court isn't unusual or even unprecedented in just the way it is operating. And it's not entirely the Roberts Court's fault. Part of it is that we have a Congress that's relatively supine. Right? So in other moments when the court has been regressive, other branches have really pushed forward at being progressive. That's not really what's happening now. We have a Congress that isn't really doing much of anything. Part of that is because a partisan gerrymandering maybe-
Alex Lovit:
Blessed by the Court.
Melissa Murray:
Yeah. Well, I mean, the Court has done some of this that's facilitated it. But the real impact of partisan gerrymandering means that maybe you just don't get a Congress doing the kinds of things that you want. Partisan polarization has just never been as pitched as it is right now. And that is also a reason why Congress doesn't do as much. It also, I think, is why you have an executive that does quite a lot because Congress is sort of not in the game.
But even with those kinds of institutional dynamics, I think this Court is unusual both for its conservative super majority, both for the fact that even with its conservative supermajority, the members of the Court in that conservative wing are perhaps more ideological than other members have been. And that's largely because we've eliminated the super majority requirement for confirmation. Before when you had to get a super majority of senators to confirm, you couldn't really put up anyone who was an ideologue because you had to get votes from the other side, maybe even quite a lot of votes from the other side.
That's not really the case anymore. And so on both sides of the aisle, all kinds of presidents, their nominees I think go down on straight line party votes and the party that is in power and the Senate wits and their nominee gets through. So you see that all of the time now and I think that lends itself to a more pitched ideological frame for the Court. There used to be a moment, I think, where there were justices who I think identified as conservatives but were surprising on certain issues. And Justice Kennedy on gay rights, for example, is a classic example of that. I don't think there are any surprises anymore and that's unfortunate.
Alex Lovit:
There have been big cases that have kind of stuck in the public consciousness in the last couple of decades, Citizens United, Dobbs, the Trump immunity decision, but I often think, and I'm certainly guilty of this, the term happens, I read the coverage, I get all upset about whatever, and then a year later I'm like, "Wait, what was Chevron deference? Why was I upset about that?" Can you give an example or two of decisions from the last decade or so that we may have kind of forgotten about but are continuing to have an impact and maybe a negative impact on our democracy?
Melissa Murray:
So I think Rucho versus Common Cause, which was decided in 2019 is one of the most corrosive decisions for democracy and does not get the attention that it really deserves. So for many, many years and over the course of many cases, the Court was sort of like trying to settle on some kind of workable formula for determining when partisan gerrymandering had gone too far. And Justice Kennedy was one of the leaders of that quest to identify this workable standard.
When Justice Kennedy left the Court in 2018 and was replaced by Brett Kavanaugh, I think that was when this era of searching for a solution to partisan gerrymandering really ended. And we had Rucho in 2019 where the Court, in a decision authored by the Chief Justice, essentially says that there is no possibility of a workable judicially identifiable standard to determine when partisan gerrymandering has gone too far and partisan gerrymandering is effectively drawing district lines in ways that consolidate the political power of a single party.
And this is not a Republican/Democrat story, both parties do this. But it has real distortive effects on democracy because it means you can basically structure your state such that the elected officials choose their voters and not the other way around. And the Court in Rucho laments partisan gerrymandering, laments the fact that it is so attractive to state legislatures, but ultimately does not see how the federal courts can police it. And so they basically abdicate this and leave it to state legislatures to fix, which is honestly the most nonsensical response ever.
Asking state legislatures who are engaged in partisan gerrymandering to fix the partisan gerrymandering is like asking a burglar to fix the burglary. It just doesn't make any sense. But once this decision happened and once federal courts absented themselves from this fight, it was just basically a free for all at the state legislatures and we're dealing with it right now. I mean, it is the reason that we had this rush to do mid-cycle redistricting. Typically, redistricting happens after a 10-year census. We have the 10-year census in 2020. We're not supposed to have another census and another round of redistricting until post 2030. But now we're having it because they recognize they can consolidate political advantage both for the Republican Party and for this particular president and it's an incredibly corrosive decision that doesn't get enough attention.
And then a few years ago when the Tennessee Three were expelled from the state legislature, I was on MS Now when we were talking about the expulsion of these individuals for protesting about gun safety. And one of the things I noted is that these three people represent three of the largest cities in the state of Tennessee: Nashville, Memphis, Chattanooga. And they're able to be put out by the rest of the state, which honestly represents a minority of the population of Tennessee relative to the huge concentrations of population in those cities and in those districts that those three state legislators represented. That's only possible because of gerrymandering.
Alex Lovit:
We'll get back to gerrymandering and the case this term about that, but I did want to ask about the use of the shadow docket.
Melissa Murray:
Yes.
Alex Lovit:
When the Court makes expedited decisions without holding full hearings or explaining its reasoning. Can you talk about, is that a new thing?
Melissa Murray:
So the shadow docket itself is not a new thing. It's always existed as a case management procedural tool, but it was mostly used in the context of the death penalty where you would have these emergency motions that came up that had to be dealt with very quickly because someone was scheduled to die. Or it came up in the context of election related litigation where the election is happening and you have to have a decision about this issue or that issue. During the Biden administration, states that were opposed to certain Biden administration policies would challenge those policies in litigation. They'd get some kind of ruling from a lower federal court and then they would challenge that ruling on the shadow docket asking the Court to lift the ruling so that the policy could be stopped at that point on the shadow docket while the litigation concerning its permissibility was still pending.
And obviously we've seen the use of the shadow docket to an incredible extent during the second Trump administration say, here's a very good example. The administration withheld certain funds that effectively led to the dismantling of the Department of Education. There's a constitutional question about whether the administration can do that, whether it can effectively dismantle an agency that is created by Congress and whether that doing so would violate the separation of powers. It is challenged in a lower federal court. A lower federal court issues an injunction preventing the administration from effectively withdrawing the funds such that it effectively dismantles the Department of Education.
This injunction is while the litigation is pending, we'll ultimately come to a conclusion about whether the administration can do this, but while that is happening, let's just keep the status quo in place. We still have a Department of Education. That ruling enjoining the administration from continuing to dismantle the Department of Education gets challenged on the shadow docket to the United States Supreme Court. And typically, the way this usually worked or is supposed to work is that the shadow docket might simply preserve the status quo in a litigation and the status quo is that we had a Department of Education.
But more frequently on the shadow docket, this Court has allowed the administration to continue doing what it is doing even though it may be the case, and the Court has acknowledged this, that once the litigation ultimately makes its way through the federal courts and back up to the Supreme Court, it might come out with a different response. Maybe this violates Congress's prerogatives in some way and is unconstitutional. But rather than keeping the status quo in place while that litigation percolates, the Court effectively allows the administration to keep doing what it's doing.
And so this means that ultimately, even if the Court reaches the conclusion that the administration is wrong, it's already done it and you can't unring the bell. And so I think this is really the problem with the shadow docket. It has allowed the administration to continue doing a lot of its things while litigation is pending and the Court doesn't really explain why it's permissible for the administration to do that. So these decisions that are issued on the shadow docket are very spare, often a few lines, maybe a paragraph. So it's not very transparent and although they are interim decisions, they actually can have quite lasting consequences because you can't put the horse back in the barn.
Alex Lovit:
The two oldest members of the court right now are also probably the two most conservative members and maybe the two most scandal-plagued members, Samuel Alito and Clarence Thomas.
Melissa Murray:
Yes.
Alex Lovit:
Do you think that they will retire while Trump is in office?
Melissa Murray:
That's a good question. I think the time for them to retire would have been before the midterms and a change in the Senate if a change is imminent, that would have been the safest time, obviously. And I don't know. It's hard to say. I didn't predict that Justice Kennedy would step down in 2018. That was surprising to me. Obviously, it has become much more frequent that Justices step down during a term where the president of the party that nominated them is in office so that their replacement can be picked by, I think, their ideological compatriots.
So it's an open question and these two have been on the Court for a long time. I think Justice Thomas gets particular pleasure out of being on the Court for a long time. I think at this point, he's the second-longest serving Justice on the Court and I think this is a way for him to own the libs and he's doing it.
Alex Lovit:
This is a story I think most people know, but just to run through it quickly, Antonin Scalia died in February of 2016, which was eight months before the election. The Republican Senate said, "Too close to the election, we're going to hold that seat open and refuse to even hold a hearing for Obama's appointee, Merrick Garland." That seat ended up going to Trump's appointee, Neil Gorsuch. Then in 2020, Ruth Bader Ginsburg died two months before the election and this time the Republicans said, "Okay, we're going to rush through Trump's appointee, Amy Coney Barrett." And she was put on the court very quickly. So there's kind of obvious hypocrisy there, but is that the new rule? If the Democrats hold the Senate and Trump appoints, should the Democrats refuse to hold a hearing?
Melissa Murray:
I mean, I will say this. I think what was done after the passing of Justice Scalia while Barack Obama was President, this is February 16th of 2016. The election was months away and the Republicans stonewalling on that was absolutely shameful. I don't think that it was necessarily impermissible for the Republicans to rush a nominee through in the wake of Ruth Bader Ginsburg's death. Don't at me about this, but the President gets to pick a nominee when there is a vacancy. I mean, it was certainly unseemly. It was inconsistent given their earlier position on the Scalia vacancy, but no one ever said that these folks were consistent. I think the Democrats need to stop bringing butter knives to gunfights and their opponents are never going to be consistent. They're always going to be opportunistic and maybe it's a race to the bottom, but we're kind of in a fight for our lives at this point.
Alex Lovit:
Well, let's talk a little bit about the current term where the Court stands right now. You mentioned the Voting Rights Act case, but just to lay it out more cleanly, can you say what was the issue? What did the Court decide? Why does it matter?
Melissa Murray:
Sure. So the case is called Louisiana versus Callais, and there's a little bit of wind up that we should talk about. In 2023, there was another case called Allen versus Milligan and it presented a very similar question. The State of Alabama post census had drawn a new congressional map and it is a state with a quite sizable Black population and it drew only one congressional district where minority voters had a chance of electing the candidate of their choice. And so the map was challenged as an impermissible racial gerrymander because it was sort of drawn in a way that would dilute the authority and voting power of Black voters in Alabama.
And a lower court said, "Yes, it is an unconstitutional racial gerrymander." It was challenged. It made its way to the Supreme Court. The Court effectively said that, "Yes, the map was impermissible," and Alabama had to draw a new map. Fast-forward to Louisiana versus Callais. Louisiana basically did a similar thing. Post census redistricting. It is a state with a sizable Black population. It drew a map where there was only one district in which Black voters had a chance of electing the representative of their choice. The map was challenged as an impermissible racial gerrymander under Section 2 of the Voting Rights Act.
A district court said, "Yes, it is likely an impermissible racial gerrymander." Directed the state to redraw the maps. And the state drew a new map with two minority opportunity districts. That was then challenged on the view that thinking about race, using race in a remedial fashion to remedy the racial gerrymander was itself a species of racial discrimination in violation of the 14th and 15th Amendments and Section 2 of the Voting Rights Act. And the Court in Louisiana versus Kelley in an opinion authored by Justice Alito effectively says, "Yes, you can't think about race when you're trying to remedy race discrimination." This is sort of the colorblind constitutionalism that has really captured this Court and certainly captured the conservative legal movement.
Justice Alito, in his opinion, made clear that he was not eviscerating, eliminating, dismantling Section 2 of the Voting Rights Act. That's important because in 2013 in Shelby County versus Holder, the Supreme Court eliminated or effectively dismantled the pre-clearance regime of the Voting Rights Act, which required states with a history of voting rights violations to first pre-clear any change to their voting policies or practices with a three-judge court or the Department of Justice. And because that system was in place, lots of suppressive laws never even went into effect. They were immediately challenged and invalidated, never went on the books.
In 2013 in Shelby County versus Holder, the Chief Justice in another decision that is absolutely corrosive to democracy effectively says that the pre-clearance coverage formula is unconstitutional and the Chief Justice in Shelby County versus Holder says, "Don't worry, we still have Section 2." So Section 2 is a cause of action that allows people to sue to challenge suppressive voter laws. It's not as effective as the preclearance regime because you've got to actually find a plaintiff, get the money, launch a litigation to challenge the law as opposed to the law just never went into effect in the first instance.
Now Justice Alito in this decision basically says that in order to establish a Section 2 violation, you've got to show intentional racial discrimination. The problem in the context of voting rights is that when Black voters say this was about race discrimination, their challengers then turn around and say, "We weren't doing this on the basis of race. We were doing it to consolidate partisan advantage," which is totally permissible. See Rucho versus Common Cause. The problem with that logic is that in many of these Southern states, partisan affiliation and race run together. Black people are often Democratic voters. So if you're drawing districts to eliminate the prospect of Democrats having power, you're likely disenfranchising Black Democratic voters.
But under this new logic that Justice Alito has created, the partisanship is the piece that gets looked at and the race aspect of it is not looked at at all. It's very hard to establish intentional discrimination. So Section 2 lives in principle, but is not going to really be available to remedy these racially suppressive laws. What it will be available to do in blue states, I think, is when blue states draw their maps to consolidate certain advantages, you will have challengers say, "What is being done here is intentional racial discrimination against White voters or this kind of voter." And I think by the time it gets up to the Supreme Court, they may find a very receptive audience.
Alex Lovit:
Well, all right. So you kind of bummed me out here, I got to say. It sounds like the current Court-
Melissa Murray:
That's what I do. That's what I do. But you know what? The book is actually quite hopeful and fun and maybe even a little entertaining about the Constitution. I can't help what the Court is doing with the Constitution, but I did write this book to give people some hope that the tools are there for them.
Alex Lovit:
Yeah. And I did actually come away from this book feeling better about the Constitution, if not the current situation on the Court.
Melissa Murray:
Yeah.
Alex Lovit:
But what are the solutions here? Should we be thinking about a Constitutional Amendment, putting energy behind some single idea? I mean, that has to have a lot of momentum, as you pointed out earlier. Should we be thinking about legislation that could maybe reverse some of these issues of gerrymandering? Or what is the path forward here? Should we be thinking about Court reform?
Melissa Murray:
So one of the things I talk about in the book at length is just this whole question of constitutional design. So the framers, when they descended on Philadelphia in 1787 in that very hot summer, they knew that they needed to create a government that was effective, but they'd seen the British crown and they'd seen the British Parliament pass these repressive laws that ran roughshod over their rights. They saw the King send a standing army into their cities precipitating the Boston massacre, just making life miserable for them.
So they saw the problem of an effective government. They also saw the need for an effective government because they had been fighting this Revolutionary War with a government that was held together by gum and friendship bracelet. So they wanted a government that was strong but not so strong that it would run roughshod over the people. And so their solution was structural, like divide power between the states and the federal government. So explicitly say what the federal government can do and everything else is for the states and the people.
And then in that subset of powers that the federal government has divide that between these three coordinate branches and give them the opportunity to check each other, that way no single branch can consolidate power and become too powerful. We've got to get back to that. I mean, we have Congress on the couch. We have a Court that is doing things that consolidate its own power and maybe the power of another branch. And then we have an executive that is asserting the most muscular vision of executive power that we've seen in two or three generations.
That is not constitutional design as the framers envisioned it. And I think we have to get back to policing the boundaries of limited government. That was the whole point. A democracy was literally about limiting government so that the people weren't overrun by it. Then they put these rights in place and then the idea behind the rights is that there are things that the people have that the government cannot intrude upon and the people have to zealously defend their rights and prerogatives. And that requires, I think, not just a different kind of government, like a new democracy, but it also requires a different model for the governed.
The people can't be subjects. They can't just take this lying down. They have to be skeptical, discerning. They have to engage with the document and, where necessary, challenge the state when it goes too far. I think if we got back to that original understanding of constitutional design, we could see the way forward. Maybe it is a Constitutional Amendment. Maybe it is just exhorting our representatives to get with the program. If you're in Congress representing the people, why are you on the couch? Why is nothing happening? What is going on here? And how do we fix it?
Maybe it is Court reform at the legislative level. Congress can limit the jurisdiction of courts. It can put more members on the Supreme Court. Court reform is within Congress's purview. Congress can also limit the President, hold oversight hearings. The branches have the tools to meet this moment. I think we the people need to compel them to do it and compel ourselves to get in the fight too.
Alex Lovit:
Well, Melissa Murray, thank you for explaining the Constitution to me and somewhat reaffirming my faith in the Constitution. And thank you for joining me on The Context.
Melissa Murray:
Thanks so much for having me.
Alex Lovit:
The Context is a production of the Charles F. Kettering Foundation. Our producers are George Drake Jr. and Emily Vaughn. Melinda Gilmore is our director of communications. The rest of our team includes Jamal Bell, Teo Clyburn, Jasmine O'Lari, and Darla Minich. We'll be back in two weeks with another conversation about democracy.
In the meantime, visit our website, kettering.org to learn more about the Foundation or to sign up for our newsletter. If you have comments for the show, you can reach us at thecontext@kettering.org. If you like the show, leave us a rating or a review wherever you get your podcasts or just tell a friend about us. I'm Alex Lovit. I'm a senior program officer and historian here at Kettering. Thanks for listening.
The views and opinions expressed in this podcast are those of the host and guests. They're not the views and opinions of the Kettering Foundation. The Foundation's support of this podcast is not an endorsement of its content.
Speaker 3:
This podcast is part of the Democracy Group.