The Supreme Court docket has two landmark voting rights cases.

([link removed])

In its first full term, which ended in June, the Supreme Court’s new conservative supermajority catered to key Republican interest groups: the NRA, abortion foes, and the fossil fuel industry. What’s up for this term, which starts on Monday? The raw issue of race in America — with possibly equally dire results.

Next week the justices will hear the first big case, which may lead to an effective final gutting of the Voting Rights Act. In 2013, the Court demolished the VRA’s preclearance requirements, which required states and localities with a history of racial discrimination to get permission from the Justice Department or a federal court to change voting practices. But Section 2 remained, which the Court said at the time was enough.

Then in Brnovich v. DNC in 2021, the Court made it much harder to use Section 2 to stop voter suppression.

Now the Supreme Court could be coming for what is left of Section 2 — and its use to block racial gerrymandering. Next week, the justices will hear a case out of Alabama. When the lawmakers there drew new congressional maps in 2021, they included only one district likely to elect a Black member of Congress, despite the fact that Black voters are more than a quarter of the electorate. Three federal judges, two of them named by Donald Trump, ruled that the map was racially discriminatory.

Through its shadow docket

([link removed])

, however, the Supreme Court stayed the lower court ruling and reinstated the map — thus the 2022 election will be held using a map already declared discriminatory. Even John Roberts, who has vigorously attacked the Voting Rights Act throughout his career, was so appalled that he dissented from the action.

Now the full Court will hear the case. Alabama’s arguments turn the Voting Rights Act upside down. The state argues that it cannot satisfy the challengers’ demand for fair representation, because doing so would require some explicit consideration of race in the redrawing of the map. This, the state argues, would represent an unconstitutional consideration of race as the predominant factor.

This flies in the face of everything the Voting Rights Act stands for. To be clear, the law does not elevate race as the only factor to be considered in redistricting, but it clearly allows it to be considered as one factor. Indeed, the law — which has been in effect for decades — would make no sense in a world where race cannot be considered. The case could represent yet another insult to the venerable Voting Rights Act and could dull the most effective remaining safeguard against racial discrimination in redistricting.

The case is not the only potentially explosive case that the Court will hear regarding race in America during this term. The justices will also hear Students for Fair Admissions v. Harvard, which seeks to end the consideration of race as a factor in college admissions. Just as Dobbs represented the conservative majority’s opportunity to end the era of Roe, FAIR v. Harvard gives the justices a chance to overturn Grutter v. Bollinger, the 2003 case in which the Court upheld racial diversity as a factor in college admissions.

Regular readers of The Briefing know that Moore v. Harper is also on the docket this term. The case is an audacious bid by gerrymanderers in North Carolina to sweep aside many of the checks and balances against their power to set election laws and procedures. The plaintiff’s dubious reading of the Constitution’s Elections Clause would free the legislature from the governor’s veto, state judicial review, and even the boundaries of their own state constitutions, when running elections.

Justice Elena Kagan said it well in July. If “over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” she said. After all, “nobody can throw the bums out.” She warned, “The way the Court retains its legitimacy and fosters public confidence is by acting like a court. By doing the kinds of things that do not seem to people political or partisan. By not behaving as though we are just people with individual political, or policy, or social preferences that we are making everybody live with.”

This case and the others this term will test whether the Court continues to toss its own credibility overboard like inconvenient baggage. The first test will come in the gerrymandering case. At a time when American democracy is under assault, the stakes could not be higher.

A Path Forward for the First Step Act

It has been three years since Congress passed the First Step Act, the first major federal criminal justice reform legislation in almost a decade. But the law has failed to help many of its intended beneficiaries in federal prisons. A new Brennan Center report examines the structure of the law’s prison reforms, how they have been implemented, and what more Congress and the Department of Justice must do to realize their full potential. Read more

([link removed])

Remembering Nancy Brennan

Nancy Brennan, the daughter of the Brennan Center’s namesake, Justice William J. Brennan Jr., and a long-serving board member of the organization, passed away this month. She cared passionately about the Brennan Center and its mission. Her sustained service with us was a direct link to the life and work of her father, her chance to pay tribute to him and carry on his impact. We continue to draw so much inspiration from the justice’s insistence that “human dignity” was at the heart of the law, the Constitution, and our mission. Nancy — a kind, decent, giving person — embodied the organization’s values in ways we will always strive to achieve ourselves. Read more

([link removed])

The Third Amendment’s Place in the 21st Century

The Third Amendment — designed to protect colonial Americans from being forced to house British soldiers — is, unsurprisingly, the least litigated part of the Bill of Rights. Yet the Supreme Court’s increasing use of contemporary analogies to interpret the meaning of constitutional provisions may create new possibilities for the Third Amendment’s modern-day applications. Brennan Center Fellow Andrew Cohen and law professor Leonard Niehoff discuss the history of the amendment and whether this constitutional dead zone could take on new life. Read more

([link removed])

Coming Up

VIRTUAL EVENT: TONIGHT

Democracy on the Brink

([link removed])

Wednesday, September 28, 6–7 p.m. ET

Ahead of the midterms, efforts to interfere with voting are in full swing. The implications are serious, especially for Latino and Black communities. State lawmakers are responding to false claims of a “stolen” election with legislation that restricts the right to vote. These communities also face the growing problem of misinformation. For an inside look at what these issues mean for the 2022 elections and beyond, join the virtual premiere of our recent conversation at the convention of the national associations of Black and Latino journalists. This event will include a live text chat Q&A with Brennan Center election expert Sean Morales-Doyle. RSVP today

([link removed])

Spanish language interpretation will be available for this event featuring live text chat Q&A with Roberta Braga of the Equis Institute.



Produced in partnership with the National Association of Hispanic Journalists

VIRTUAL EVENT: What’s Prison For? In Conversation with Bill Keller

([link removed])

Thursday, October 6, 6–7 p.m. ET

With roughly 2 million people behind bars, America’s prison system doesn’t exactly have a reputation for empathy — but could that change? Pulitzer Prize–winning journalist Bill Keller has spent years examining what is possible if prisons focus on preparing the incarcerated to be good citizens when they return to society, which the overwhelming majority will. In his new book, What’s Prison For? Punishment and Rehabilitation in the Age of Mass Incarceration

([link removed])

, he shows us how we can reform our prisons and why there’s a reason for cautious optimism. Rehabilitation, he argues, is not only an investment in public safety but a moral imperative. Keller will be joined by moderator Jason D. Williamson, executive director of NYU Law School’s Center on Race, Inequality, and the Law. RSVP today

([link removed])

Produced in partnership with New York University’s John Brademas Center

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

([link removed])

News

Elizabeth Goitein on the classified documents found at Mar-a-Lago // MARKET WATCH

([link removed])

Ames Grawert on the benefits of bail reform // CBS

([link removed])

Sean Morales-Doyle on the consequences of mass voter challenges // ASSOCIATED PRESS

([link removed])

Ian Vandewalker on the harm of election denier messages // GUARDIAN

([link removed])

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


([link removed])

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center
([link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

([link removed])

([link removed])

([link removed])

([link removed])

([link removed])

([link removed])