Shundo David Haye – Zen Priest

‘In a piercing and animated dissenting opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, sized up the Court’s decision as “straight-facedly” holding that “the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders.” What will ensue, she predicted, is the worsening of how “this country’s two major parties compete in a race to the bottom.” Her dissent was not only concerned about partisanship; Kagan warned that the Callais decision threatens the fundamentals of how our constitutional democracy works. It is Congress’s job to make laws, and it did so in the Voting Rights Act. The Court’s job is to interpret the law—not to rewrite a statute that Justices do not like. As Kagan recounted, the Court’s conservative majority “has had its sights set on the Voting Rights Act” since 2013, when it eviscerated Section 5 of the statute, which required jurisdictions with a history of voting discrimination to seek federal preclearance of any new voting rules. And in 2021 the Court required Section 2 plaintiffs challenging burdens on casting ballots to focus on discriminatory intent rather than discriminatory effect, with the result that no Section 2 challenge since then has succeeded. In the Court’s inexorable march “to destroy” the V.R.A., Callais, Kagan wrote, was the final piece in the “now-completed demolition of the Voting Rights Act.” The statute, she continued, “was born of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality. And it has been repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress. Only they have the right to say it is no longer needed—not the Members of this Court.”

Through its long-sought destruction of the Voting Rights Act, the Supreme Court has provided an illustration of how our democracy fails. It has usurped the work of Congress, and effectively vetoed legislation that was intended to achieve the democratic ideals of a multiracial people. Justice Kagan has sometimes been viewed as a strategist rather than a polemicist, who tries to forge agreements with the Court’s more moderate conservative members. But, in this dissent—which may well be remembered as her greatest—she freely displayed her virtuosic incandescence. She concluded, “I dissent because Congress elected otherwise. I dissent because the Court betrays its duty to faithfully implement the great statute Congress wrote. I dissent because the Court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity. I dissent.” ‘ (from the New Yorker)