{"id":58306,"date":"2026-05-05T19:03:10","date_gmt":"2026-05-05T19:03:10","guid":{"rendered":"https:\/\/www.europesays.com\/people\/58306\/"},"modified":"2026-05-05T19:03:10","modified_gmt":"2026-05-05T19:03:10","slug":"guess-whose-rights-the-supreme-court-thinks-come-with-a-stopwatch","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/people\/58306\/","title":{"rendered":"Guess whose rights the Supreme Court thinks come with a stopwatch."},"content":{"rendered":"

Sign up for\u00a0Executive Dysfunction<\/a>, a newsletter that highlights one under-the-radar story each week about how Trump is changing the law\u2014or how the law is pushing back. You\u2019ll also receive updates on the latest from Slate\u2019s Jurisprudence team.<\/p>\n

After the Supreme Court handed down Louisiana v. Callais<\/a> last Wednesday, effectively terminating decades of protections<\/a> for minority voting rights, conservatives across the country cheered at the court\u2019s blessing that they can gerrymander\u2014across both racial and party lines\u2014to their hearts\u2019 content.<\/p>\n

On Monday, the court allowed that decision<\/a> to go into immediate effect so that Louisiana can cancel its already-begun primary and rewrite its maps to remove at least one district that had been drawn to allow Black Democrats to vote for their candidate of choice. In doing so, the court brushed off its longtime regulation that its decisions not go into full effect until 32 days after an opinion is finalized. This, rather than Callais itself, is what spurred Monday\u2019s angry back-and-forth. Throughout the tense exchange in Justice Samuel Alito\u2019s concurrence and Justice Ketanji Brown Jackson\u2019s dissent, they spar over when the clock of the rule of law should start and stop.<\/p>\n

If the Callais decision itself didn\u2019t make it clear enough, the subsequent order made it obvious just how much of a massive win for voter disenfranchisement efforts the Supreme Court has given the Republican Party in these upcoming midterms and beyond\u2014and how largely that conservative-majority determined clock now looms over all of us. You don\u2019t have to take our word for it. As Mississippi\u2019s Republican governor, Tate Reeves, put it: \u201cFirst Dobbs. Now Callais. Just Mississippi and Louisiana down here saving our country<\/a>!\u201d Dobbs<\/a> was, of course, the decision that overturned Roe v. Wade, a conservative scheme for decades. And the dismantling of the Voting Rights Act was a similar effort; indeed, for the chief justice, it was a long-standing personal project, going back to the act\u2019s amendment in 1982, when a young John Roberts lobbied against<\/a> it as a lawyer in the Reagan White House. In some ways, the clock has been ticking for 44 years.<\/p>\n

Despite the disrespect for precedent shown in both Dobbs and Callais, the cases represent two different ways of manipulating law, text, the role of Congress, and the remediation of harm. Dobbs showcases a radical adherence to \u201chistory\u201d as a means of affording states the \u201cright\u201d to make abortion illegal. Callais showcases how some Republican appointees are willing to brutalize, even modernize, their own vaunted methodology of an originalism rooted in text and history to achieve results they favor politically. Callais, like its 2013 predecessor Shelby County v. Holder, subordinates text and history to state prerogatives. Perhaps more pointedly, the conflicting results reveal that in the minds of the court\u2019s conservatives, some \u201crights\u201d are enduring, forever worthy of protection, while others are fleeting, with the court standing as sole arbiter of when the clock has run on basic freedom and equality.<\/p>\n

It is true that some laws are substantive and some are remedial, even temporary. But it is also true that the Reconstruction Amendments declared Congress, and not the courts, to be the arbiter of when there has been \u201ctoo much enforcement\u201d of voting rights ,and when the time for a set of constitutional or statutory protections is no longer necessary. When Roberts, on behalf of the court\u2019s conservative wing, first announced in Shelby County v. Holder that the Civil Rights Act\u2019s preclearance procedures had reached some kind of historical sell-by date, despite multiple reauthorizations by Congress, he did so by breezily announcing that he had run some numbers and \u201cour country has changed.\u201d\u00a0In fact, \u201cthings have changed dramatically,\u201d to the point where the preclearance mandated by the Voting Rights Act was both unconstitutional and unnecessary. In response, in 2021 and 2022, 19 states passed more than 30 laws making it harder to vote. As Michael Miller and Kevin Morris wrote in Slate<\/a> last week, these changes worked like a charm in disenfranchising the historically marginalized voters the VRA and its reauthorizations had been written to protect. It seems that in the 13 years since Shelby killed another key plank of the act\u2014but undetected this time by the Roberts court majority\u2014things have \u201cchanged\u201d yet again, for the worse for voters of color. For this court, however, change works only in a single direction. So in Callais, the court, yet again, announced that the past is in the past and the VRA needed to be \u201cupdated\u201d once more to reflect the majority\u2019s view that racism is a thing of the ancient past<\/a>. As Alito asserted, \u201cSocial change has occurred throughout the country and particularly in the South.\u201d Case closed.<\/p>\n

And the justice found even more changes to celebrate. New elections! New party lines! New computer programs! So very, very many modern developments exist today (and also so much cherry-picked evidence<\/a>!) that the harms from long ago that required remediation by the VRA are all to be shrugged off. As Alito puts it, \u201cDiscrimination that occurred some time ago, as well as present-day disparities that are characterized as the ongoing \u2018effects of social discrimination,\u2019 are entitled to much less weight.\u201d Indeed, so much has changed that the same chief justice who decried \u201cAlabama\u2019s attempt to remake our \u00a72 jurisprudence anew\u201d in Allen v. Milligan<\/a>, just three years ago, said yes when Louisiana attempted it in 2026. Progress!<\/p>\n

What does this mean for the court\u2019s various \u201coriginalist\u201d and \u201ctextualist\u201d projects? Well, instead of doing law, text, history, or statutory construction, some members of the court are just watching an egg timer to see when the clock has run down on racism.<\/p>\n

Again, the egg timer really works only in a single direction. Consider how little modern societal progress mattered to Alito when he blithely overturned Roe v. Wade in Dobbs, opting to ignore the raft of economic, health, criminal, and other impacts of stripping women of their right to terminate a pregnancy<\/a> that had been amassed by experts. Nothing about women\u2019s lives as experienced in the modern era colored his originalist reading of reproductive freedom. Consider, too, how little the development of lethal weapons affected the court\u2019s originalist reading of the Second Amendment right to bear arms as reinforced in New York State Rifle & Pistol Assn. v. Bruen<\/a> in 2022. The high court showed no regard for modern technologies, data, or societal change when it demanded that lower courts consider which laws prohibited rusty 18th-century muskets to determine whether high-capacity semiautomatic rifles could be regulated<\/a>. It seems that while the right to reproductive autonomy or to express your will at the voting booth can become obsolete over time, the right to murder schoolchildren using weapons of war is enshrined by our history.<\/p>\n

Indeed, with this court, some rights are forever, while others have an expiration date. Take the gradual erosion of the Fourth Amendment\u2019s exclusionary rule because modern police are now ostensibly better trained<\/a>. Or the end of affirmative action in higher education<\/a> because, as the court noted in 2013<\/a>, \u201cthe number of minority applicants with high grades and test scores has indeed increased.\u201d It was this other area of race remediation, in fact, that first launched the ticking-time-bomb judicial methodology. In a 2003 opinion upholding a law school\u2019s use of race in admissions, Justice Sandra Day O\u2019Connor, writing for the court, ends with this statement: \u201cWe expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.\u201d In 2023 Roberts seized on this statement when it came time to kill off affirmative action in higher education once and for all. That same year, Justice Brett Kavanaugh wrote a cryptic concurrence in Milligan announcing that he would save for another day the question of whether race-based redistricting could constitutionally \u201cextend indefinitely into the future.\u201d Evidently it did not.<\/p>\n

<\/p>\n

\"\"<\/p>\n

\n Richard L. Hasen
\n The Supreme Court\u2019s Conservatives Just Issued the Worst Ruling in a Century
\n Read More\n <\/p>\n

<\/a><\/p>\n

The perverse reality is that the court\u2019s use of history in Callais couldn\u2019t be more backward. The court cited supposedly enlightened developments, like increased Black voter turnout (something that could not have happened but for laws like the Voting Rights Act), the development of mapmaking technologies, and the court\u2019s own 2019 decision in Rucho v. Common Cause<\/a>, declaring partisan gerrymandering as justification for the VRA\u2019s April 29 expiration date. Thus, under the guise of small changes and tweaks and adjustments to the act, the majority determines which acts of Congress change history and which are changed by history.<\/p>\n

One of the key criticisms of the preferred originalist method of many of the court\u2019s conservatives is that history is messy and filled with contradictory facts and anecdotes on all sides of any controversial issue. Thus, as one of us has written, \u201coriginalism [is] sufficiently malleable and inchoate that it allows for almost any cherry-picked text and any wisp of history to be determinative.\u201d<\/a> And, perhaps most relevant for Callais\u2019 purposes, a good originalist is meant to ignore any change to society that may have happened in the years since the law was passed, to avoid having the perception of letting policy judgments determine new judicial rules.<\/p>\n

In a well-known law review article<\/a>, Justice Antonin Scalia\u2014the court\u2019s original originalist\u2014argued that in addition or in connection to originalism, judges should create their own hard-and-fast rules. But, he cautioned, courts must make those rules only when Congress leaves the space for judges to do so. For Scalia, as opposed to today\u2019s originalist justices, the VRA was a law for which Congress left no such space. \u201cOne can conceive of a statute in which Congress makes clear that the totality of the circumstances is always to be considered. (See, for example, \u00a7 2(b) of the Voting Rights Act.)\u201d In other words, Congress acted in a historically unique and exacting way in telling judges how they were supposed to decide redistricting challenges. Nevertheless, the majority in Callais readily deviates from Scalia\u2019s directive by ignoring Congress\u2019 once-in-a-generation effort to create a holistic test for redistricting under Section 2.<\/p>\n

<\/p>\n

A Radical Court Just Called Trump\u2019s Abortion Bluff
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<\/p>\n

Louisiana Republicans Are Taking Attacks on New Orleans Voters to a Shocking Place
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\n This Content is Available for Slate Plus members only<\/p>\n

Is Todd Blanche Already a Worse Attorney General Than Pam Bondi?
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All in all, the opinion in Callais is a lot of things\u2014arrogant, antidemocratic, and antiseptic (to borrow a phrase from Justice Elena Kagan\u2019s dissent)\u2014but one thing it is not is originalist.<\/p>\n

Like the conservative justices\u2019 time-limited approach to affirmative action and other racial issues, the court announced in Callais that so too should the nation treat voting rights as living on borrowed time. The court in this case held that modern progress in racial developments and politics permitted the effective outlawing of majority-minority districts. Well, now our country is unmistakenly headed toward a racial backslide for the ages. Judges and practitioners should take Alito at his word that when things inevitably grow worse for minorities over the next few years, these modern circumstances will change yet again, and presumably the law should as well. If modernity and social trends dictate what courts must do next, the Voting Rights Act will by necessity live as long as race-based voter suppression does. Its revival, one way or the other, will soon be proved essential.<\/p>\n

Sign up for Slate\u2019s legal newsletter.<\/p>\n","protected":false},"excerpt":{"rendered":"Sign up for\u00a0Executive Dysfunction, a newsletter that highlights one under-the-radar story each week about how Trump is changing…\n","protected":false},"author":2,"featured_media":58307,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[146],"tags":[2496,3428,535,3606,7347,7030,536,2194,11904],"class_list":{"0":"post-58306","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-john-roberts","8":"tag-antonin-scalia","9":"tag-brett-kavanaugh","10":"tag-john-roberts","11":"tag-judiciary","12":"tag-jurisprudence","13":"tag-samuel-alito","14":"tag-supreme-court","15":"tag-voting","16":"tag-voting-rights"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@people\/116523526063342152","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/58306","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/comments?post=58306"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/58306\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media\/58307"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media?parent=58306"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/categories?post=58306"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/tags?post=58306"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}