Sam's Club (SCOTUS) Says Separate-But-Equal Is Cool
Especially, they say, if it is used to rob us of First Amendment freedoms
Justice Alito is the proud author of another majority opinion issued yesterday by SCOTUS in Alexander v. S.C. State Conf. of the NAACP. That opinion reeks of moral and intellectual decay, a true rot. Something certainly is rotten here. Justice Alito and his gang just said something strikingly similar to “separate but equal.” They did not use those words, but they sure used that idea.
Justice Alito proudly flaunted a prior decision that purportedly “made clear that” state officials “may engage” in purported “political gerrymandering, even if it so happens that the” people walled-off “happen to be black” and “even if the State were conscious of that fact.” So you see, Justice Alito boasted, state officials’ “partisan-gerrymandering defense therefore raises ‘special challenges’ for plaintiffs.” People opposing state officials blatantly manipulating the power of the people (to speak and assemble and seek redress of grievances) purportedly must bear the burden of “ruling out” that “political considerations dominated” state officials’ efforts to entrench themselves or their allies with “redistricting efforts.” That makes no sense at all.
Among the most striking and shocking aspects of the opinion of Justice Alito and his gang is that they just said, essentially, that separate-but-equal racial discrimination is just fine precisely because it was paired with discrimination that was even more clearly unconstitutional. State officials (and SCOTUS justices) openly targeted a second crucial equality that the First Amendment emphatically protects—the very aspects of our humanity and our self-government that the Founders and Framers went to extraordinary and extreme lengths to protect. Not only did they write a Constitution, they physically fought in a revolution. The so-called judgment of Justice Alito and his gang was directly and clearly an attack on our freedom to associate and our freedom to speak and think about our self-government.
Justice Alito’s first paragraph proved the clear unconstitutionality of his judgment: State officials “are almost always aware of the political ramifications of the maps they adopt,” indeed, they commonly (if not always) draw “a map,” specifically, to “achieve a partisan end,” and where such lines are to be drawn simply is “not justiciable in federal court.” Justice Alito and his gang merely pretended that when state officials directly and deliberately discriminate against people based on the actual or expected content and even the viewpoint of their political speech simply is “not justiciable in federal court.” Such pretense is exceedingly obviously false. Such official misconduct falls squarely under copious SCOTUS precedent applying our First Amendment rights and freedoms.
According to Justice Alito and his highly-politicized gang, state officials have the power to “pursue partisan ends” to create political ghettoes. According to this SCOTUS majority, of course, the Constitution permits state officials to discriminate against residents of entire neighborhoods (virtually walling them off), specifically, because of the political content and viewpoint of their speech (voting, campaigning, discussing political issues). For good measure, SCOTUS shifted the burden of proof: “a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by” an unconstitutional purpose. That contention also is obviously false.
Consider what Justice Alito and his gang knew our Constitution required of SCOTUS (and all federal courts). Consider what SCOTUS’s own precedent clearly confirmed was justiciable by all federal courts and how all federal judges were required to decide. Judges may not be empowered to dictate where state legislators draw the lines walling voters in or out, but they must stop state officials from discriminating based on the content and viewpoint of political speech. Voting necessarily is quintessential political speech.
Consider Justice Alito’s own words in a separate opinion that he wrote to concur in Iancu v. Brunetti, 588 U.S. 388 (2019): “Viewpoint discrimination is poison to a free society;” “it is especially important for this Court to remain firm on the principle that that the First Amendment does not tolerate viewpoint discrimination.”
Consider also the words of these justices in 2022 in Shurtleff v. City of Bos., 596 U.S. 243 (2022). “[T]he First Amendment prevents” all federal and state officials “from discriminating against speakers based on their viewpoint.” Officials “may not exclude” any “speech” (much less actual people) to repress their “viewpoint.” Such discrimination clearly is “impermissible viewpoint discrimination.”
Consider Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995). State officials “target[ing]” the “particular views” of speakers (who necessarily include candidates as well as voters) committed “blatant” and “egregious” “violation[s] of the First Amendment.”
Consider a SCOTUS decision issued just last year by these justices, 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). “[T]he Free Speech Clause” protects every American’s “freedom to think as” he “will and to speak as” he “think[s].” Such “rights” are “inalienable.” “All manner of speech” (including voting and campaigning) enjoys “First Amendment’s protections.” “[T]he First Amendment’s protections belong” to “all, including” voters “whose motives” partisan politicians consider “misinformed or offensive.”
“[T]he freedom of thought and speech” are “indispensable to the discovery and spread” of “truth,” especially about our own government. Courts must allow “all views” regarding political issues “to flourish” to “test and improve our own thinking” as “individuals and as a Nation,” so it is a “fixed star in our constitutional constellation” that “government may not interfere” (as state officials and SCOTUS justices clearly and deliberately have) with the “marketplace of ideas” about how we should be governed.
Consider Snyder v. Phelps, 562 U.S. 443 (2011), which (like Reed, below) was written by Chief Justice Roberts. Voters’ “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Voters’ “speech concerning public affairs” (including voting) is “the essence of self-government.” Speech (including voting) “should be uninhibited, robust, and wide-open,” It even may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.”
“Speech deals with matters of public concern when it can” merely “be fairly considered as relating to any matter of political, social, or other concern to the community” or even when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
Consider Reed v. Town of Gilbert, 576 U.S. 155 (2015). “Content-based laws” (or court rules or rulings) are “presumptively unconstitutional.” Clearly, Justice Alito and his gang (and state officials) targeted the content (and even the viewpoint) of political speech. Reed (at 163-164) identified types of “content-based” restrictions on speech. Such restrictions can (and must) “be justified only if” states officials “prove[d] that” their conduct was “narrowly tailored to serve” public “interests” and then “prove[d]” that such “interests” are so important as to be considered “compelling.” State officials must “demonstrate that” any “differentiation between” candidates or voters based on the content of their speech (including votes) “furthers a compelling governmental interest and is narrowly tailored to that end.” All content-based discrimination by state or federal officials “must” be able to “satisfy strict scrutiny” by all courts.
Relevant to our freedom to choose with whom we associate, a few factors should be highly relevant. People go to considerable effort and expense to move themselves and their families into or out of particular areas. People also necessarily choose with whom to associate when they choose where to reside. Their choices certainly may be (and often are) political. A political voice necessarily is associated with real property and with the choice of with whom to associate when choosing where to reside. But according to Justice Alito and his gang, it’s just fine to pretend that Americans’ choices about association and the political voice associated with their property really belong to state officials (for or against whom residents may not even have had the opportunity to vote).
What SCOTUS just did clearly violated our Constitution. The Fifth Amendment emphasized a principle of which SCOTUS justices should not need reminding: “No person” whatsoever may “be deprived” by any federal judge of any “liberty” or any “property” until they have been afforded all “due process of law.” Article III emphasized that no federal “judicial Power shall extend” any further than permitted “under [our] Constitution.” Article VI emphasized that our “Constitution” is “the supreme Law of the Land” and all “Judges” are “bound thereby.” All public servants are “bound” to “support” our “Constitution.”
SCOTUS justices and their opinions cannot change our Constitution. As James Madison emphasized in his famous and powerful Report of 1800, the First Amendment was written and ratified precisely to preclude any “vague and violent construction” of Americans’ power to govern themselves and to think and speak (including by voting) as they wish. Clearly, “our constitution” was “issued from the sovereign authority of the people,” i.e., by “the people” in “their highest sovereign capacity.” So the Constitution expressly confirmed “the sovereignty of the people over constitutions” and the “authority of constitutions over governments,” and both are “truths which are at all times necessary to be kept in mind.”
Due process of law includes the First and Fourteenth Amendments. The First Amendment emphasizes some of the most precious privileges and immunities, the most important aspects of our sovereignty over our public servants. No public servant has any power to abridge “the freedom of speech” and “press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment secures the foregoing with due process of law. “No State” has any power to “make or enforce any [purported] law” that in any way “abridge[s any] privileges or immunities of citizens of the United States” or to “deprive any person of” any “liberty” or any “property, without due process of law” or “deny to any person” the “equal protection of the laws.” Even more specifically relevant, “the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof” cannot be “in any way abridged, except for participation in rebellion, or other crime.”
Suffrage is the speech of sovereigns.1 Voting is the particular form of speech that is most explicitly, emphatically and frequently secured by our Constitution. Voting is secured repeatedly in Articles I and II and in eight amendments (Amendments XII, XIV, XV, XVII, XIX, XXIV, XXV, XXVI).
Four amendments emphasize that the right of U.S. citizens “who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age” or “by reason of failure to pay any poll tax or other tax” or “on account of sex” or “on account of race, color, or previous condition of servitude.” One additional amendment emphasizes that “the freedom” of political “speech” (which necessarily includes voting) cannot be abridged, including on account of anything potentially considered “religion” or a matter of conscience.
It is absurd for SCOTUS justices to pretend that someplace in our Constitution We the People gave SCOTUS justices (or any other public servant) the power to decree or do anything that clearly violates our Constitution. SCOTUS justices just usurped the power to rob us of the power of our own political voices.
One of the authorities who most influenced the Founders’ views (reflected in the Declaration of Independence and in the Constitution) was Montesquieu. Montesquieu’s most influential thoughts included those about the sovereignty of the people:
When the body of the people is possessed of the supreme power, it is called a democracy. . . . In a democracy the people are in some respects the sovereign [making the laws], and in others the subject [of the laws].
[Citizens’] exercise of sovereignty [is] by their suffrages [voting to express] their own will [and choosing representatives to make laws]; [by voting] the sovereign’s will [becomes] the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages [the right to vote] are to be given, as it is in a monarchy to know who is the prince, and [how] he ought to govern. . . . The people, in whom the supreme power resides [in a republic], ought to have the management of everything within their reach.