The Supreme Court’s conservative supermajority returns to one of its favorite victims.

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June is the cruelest month. Tomorrow begins the weeks of decisions to be announced by the Supreme Court as its term draws to a close. Once again we will wait to find out how far the six conservative justices will push — and what kind of country we will live in. I discuss the perils of this moment in my new book, The Supermajority

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, out next Tuesday.

One of the most important rulings will come in a major case on the Voting Rights Act, Allen v. Milligan. It could also be one of the most damaging. That statute was by some measures the most effective civil rights law on the books. And over the past decade, the Court led by Chief Justice John Roberts has demolished it, bit by bit.

The background of the Voting Rights Act will be familiar to readers of this newsletter. Although the 15th Amendment, ratified in 1870, guaranteed Black Americans the right to vote, states found countless ways to deter, dilute, and deny those votes for nearly a century.

Then came Bloody Sunday

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. Violent attacks on civil rights protesters horrified the nation, awoke a collective sense of justice, and galvanized our political leaders to act. On August 6, 1965, less than five months after the march, President Lyndon Johnson signed the Voting Rights Act into law. It created our modern, multiracial democracy — an American success story.

But in the early 1980s, a young lawyer in the Reagan administration named John Roberts furiously opposed a bill renewing and clarifying the act. He lost that battle, but his war on the law was just beginning. He would in many ways make his crusade against the Voting Rights Act the signature issue of his career.

First came Shelby County v. Holder in 2013. The law’s Section 5 required states with a history of racial discrimination to get permission from the Justice Department or a federal court before changing voting practices. At the argument, Antonin Scalia called this a “racial entitlement.” The audience gasped. Scalia did not write the opinion, though; Roberts did, and he was more decorous. The South had changed, he explained. That was then, this is now. The Court effectively ended Section 5.

Within hours, states began to implement discriminatory voting laws. Texas, for example, implemented a voter identification law that instantly disenfranchised 608,000 registered voters, according to a federal judge.

Weak and wobbly, there was something left of the Voting Rights Act: Section 2. That lets you sue after the fact to prove discriminatory voting practices. Voting rights groups including the Brennan Center began to use it to challenge the new wave of voter suppression laws — with heartening success. We won our case against the Texas law, for example. Then in 2021, in Brnovich v. Democratic National Committee, the Court made it much, much harder to use Section 2 against discriminatory voting laws.

All of which brings us to the upcoming case. For decades, Section 2 has been a potent protection against racial gerrymandering, the drawing of legislative lines to dilute the power of the vote for communities of color. In fact, challenging gerrymandering is the main way Section 2 has been used before. That law’s strength may soon be a memory.

In the case, Alabama’s mapmakers packed as many Black voters as possible into an already existing majority-Black district, then surgically distributed the remainder among other districts to ensure that they could not assert political power. Black voters could elect a candidate of choice in only one of seven districts despite making up over a quarter of the state’s voting age population. The Court may bless that. (Talk about “racial entitlements”!)

Ruth Bader Ginsburg wrote a memorable dissent in Shelby County. She warned, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” In the decade since, the white-Black voter turnout gap grew between 9 and 21 percentage

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points across five of the six states originally covered by Section 5 of the Voting Rights Act. Maybe other factors caused this gap to grow. But an eviscerated voting rights law surely won’t help.

On many things, John Roberts has been prudent, canny, an institutionalist. When it comes to the law of democracy, he has been the activist leader of a disciplined conservative cadre. The supermajority, I fear, is just getting warmed up.

Spotlight on the Radical Supreme Court

In his book due out June 6, The Supermajority: How the Supreme Court Divided America, Michael Waldman examines the Supreme Court’s shift to the right and its regressive rulings on gun laws, abortion rights, and climate change in the 2021–2022 term. Kirkus called it “a damning account of a Supreme Court gone wildly activist in shredding the Constitution.” The book offers solutions, too, including term limits and a binding ethics code. Pre-order a copy of The Supermajority here.

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Join Waldman for a Reddit “Ask Me Anything” on Thursday between 2 and 4 p.m. ET.

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The Cost of a Criminal Record in New York

New research by Data for Justice finds that 2.1 million New Yorkers have a criminal record, which can prevent them from securing jobs, loans, and even housing. A Brennan Center analysis estimates that the financial burden of a conviction is staggering, costing people some $12.6 billion in reduced earnings every year. “Reducing the financial harms of criminal records should be a priority for policymakers, especially those hoping to reduce economic inequality or strengthen the state’s workforce,” Ames Grawert and Noah Kim write. READ MORE

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The Unconstitutional Expulsion of State Legislators

The recent decision by the Tennessee House of Representatives to expel two members for their political speech — and possibly for their race — was unprecedented. While state legislatures do have broad power to expel their members, the Tennessee house departed from well-established democratic norms and likely violated the Constitution by using this power as a political weapon. “Freedom of speech and freedom from racial discrimination are protected. Those rights do not cease to exist when one enters through the statehouse doors,” Robyn Sanders and Andrew Garber write. Read more

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In Defense of Federal Property Rights

Last week, the Supreme Court unanimously sided with a 94-year-old Minnesota woman who argued the government had violated her Fifth Amendment rights by keeping the profits from the seizure and sale of her home. The decision underscores the importance of federal judicial protections for property rights, which are too often underprotected by states and localities, law professor Ilya Somin argues in State Court Report. “While states are free to protect property rights — and other rights — more than the federal Constitution requires, the latter sets a vital floor below which states must not fall,” he writes. Read more

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Filling Congress’s Expertise Void

The Supreme Court has decided to hear a case that could jeopardize evidence-based policymaking across the federal government. The ruling could roll back federal agencies’ authority and require Congress to legislate with increasing specificity about highly technical issues — a responsibility that legislators are woefully unprepared to take on. “The looming decision is a reminder that Congress must invest in itself to meet the needs of a 21st-century society, regardless of what the Court holds in this case,” Maya Kornberg and Martha Kinsella write. READ MORE

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Coming Up

VIRTUAL EVENT: Life After the Death Penalty

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Wednesday, June 7, 3–4 p.m. ET



Join us for a live discussion about the death penalty, justice, and empathy. Panelists Alex Mar, author of Seventy Times Seven: A True Story of Murder and Mercy

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, and journalist Josie Duffy Rice will be led in conversation by moderator Laura Coates of CNN. RSVP today

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LIVE IN NYC & ONLINE: How the Supreme Court Is Dividing America

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Tuesday, June 13, 6–7 p.m. ET



The most extreme Supreme Court in decades is on the verge of changing the nation — again. How did we get here? How will overreach by the justices impact the 2024 election? And what can we do to protect American democracy from a fiercely partisan Supreme Court? Join us at the 92nd Street Y or via livestream for a discussion of Brennan Center President Michael Waldman’s new book, The Supermajority

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, about the Court’s devastating 2021–2022 term. He will be joined by moderator George Stephanopoulos of ABC News, as well as constitutional law scholars Wilfred Codrington III and Cristina Rodríguez. RSVP today

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Produced in partnership between 92NY’s Newmark Civic Life Series and the Brennan Center



VIRTUAL EVENT: The Supermajority

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Wednesday, June 21, 1–2 p.m. ET



Today’s Supreme Court is the most extreme in decades. Nine unelected justices hold lifetime seats with great power and, driven by the majority’s originalist ideals, they are rapidly upending American life as we know it. Join us for a virtual event with Michael Waldman for expert analysis on the threat the current Court poses and what must be done to shore up democracy. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Noah Chauvin on domestic spying under the Foreign Intelligence Surveillance Act // THE HILL

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Alice Clapman on why GOP-led states are leaving voter data cooperative ERIC // MISSOURI INDEPENDENT

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Amanda Powers on state supreme court diversity // LAW360

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Jasleen Singh on restrictive voting laws in Tennessee // WPLN

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Ian Vandewalker on increased campaign contributions by big donors ahead of 2024 // NEWSNATION

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Feedback on this newsletter? Email us at [email protected]

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