Alito's Gang Advocates and Protects "Political Apartheid"

As Justice Alito appropriately emphasized in a concurring opinion in Iancu v. Brunetti, 588 U.S. 388 (2019), “Viewpoint discrimination is poison to a free society,” and “it is especially important for this Court to” emphasize “that the First Amendment does not tolerate viewpoint discrimination.”

In 2022 in Shurtleff v. City of Bos., 596 U.S. 243 (2022) every SCOTUS justice agreed that “the First Amendment prevents” all federal and state officials “from discriminating against speakers based on their viewpoint.” “Speakers” and “speech” necessarily include voters and voting. Officials “may not” repress or interfere with any “speech” to repress a political or social “viewpoint.” Such discrimination clearly is “impermissible viewpoint discrimination.”

On June 30, 2023, in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), every SCOTUS justice agreed that all public servants (state and federal) must allow “all views” regarding political, social and religious 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” with the “marketplace of ideas” about how we should be governed. It is beyond dispute that the tactics of state legislators and the SCOTUS majority in Alexander did, and they were intended to, “interfere” with the “marketplace of ideas” about how we should be governed.

Much more SCOTUS precedent powerfully emphasized the blatant unconstitutionality of viewpoint discrimination. SCOTUS precedent also powerfully emphasized that discrimination that violates our freedom of speech in connection with elections is unconstitutional. Voting (for or against candidates or issues) irrefutably is quintessential political speech. Thinking and speaking about government are the primary purposes and duties of government. Thinking and speaking (including voting) regarding self-government are the primary powers of sovereign citizens and the primary point of sovereignty of citizens.

In a concurring opinion in Fulton v. City of Philadelphia, 593 U.S. 522 (2021), Justices Alito, Thomas and Gorsuch re-emphasized that in District of Columbia v. Heller, 554 U.S. 570 (2008), SCOTUS had re-emphasized that “[t]he Constitution was written to be understood by the voters.” Heller copied that statement from United States v. Sprague, 282 U.S. 716 (1931). Sprague also re-emphasized that federal government did not have any “powers not granted to the United States” by “the people” (the voters). “The Tenth Amendment was intended to confirm the understanding of the people” (the voters) “at the time the Constitution was adopted, that [some] powers [were] not granted to the United States,” but “were reserved” to “the people” (the voters).

In Citizens United v. FEC, 558 U.S. 310 (2010) SCOTUS (in an opinion in which Chief Justice Roberts and Justices Scalia, Thomas and Alito joined) emphasized that in our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” “Political speech” (including voting) is “indispensable to decisionmaking in a democracy, and this is no less true because the speech” consists of voting by an “individual” and not money or information from “a corporation.”

Clearly, “the Government cannot restrict political speech” (voting) “based on the speaker’s” (voter’s) “identity” with a political party. Obviously, “the First Amendment does not allow political speech restrictions based on a speaker’s” (voter’s) “identity” with a political party. “[T]he First Amendment” clearly does not permit “government” to “restrict the speech” (votes) “of some elements of our society in order to enhance the relative voice of others” merely because voters associate themselves with one party or another. “[T]he First Amendment generally prohibits the suppression of political speech based on the speaker’s” (voter’s) “identity” with a political party. “The First Amendment” and Fourteenth Amendment do “not permit” government “to make” any “categorical distinctions based on” the “identity of the speaker and the content of the political speech.”

As a result, the majority emphasized that “political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the restriction” on voting expressly based on political party “furthers a compelling interest and is narrowly tailored to achieve that interest.” They emphasized that “the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers,” including voters, based on political association.

They even admitted exactly what the Alexander majority did: “Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” They further admitted, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” “The Government may not by these means” (including those used in Alexander) “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration,” including by voting.

Clearly, “it is inherent in the nature of the political process that voters must be free” to “determine how to cast their votes.” “The Constitution” clearly “confers upon voters” (not SCOTUS judges or state legislators) “the power to choose” their representatives, “and it is a dangerous business for” SCOTUS judges and state legislators “to use the election laws to influence the voters’ choices.” “There is” nothing that is or that can be worthy of the name “precedent supporting laws that attempt to distinguish between” voters based on the content or viewpoint of the political speech or the political association at issue in Alexander.

“Courts, too, are bound by the First Amendment.” “First Amendment standards” require that SCOTUS “must give the benefit of any doubt to protecting rather than stifling speech.”

The Alexander justices’ pretense that partisan gerrymandering is constitutional merely because it has been practiced since the founding is absurd and obscene. It is as much so as pretending that all the following are (or ever were) constitutional merely because they were practiced at (and long before and after) the founding: “slavery” or “involuntary servitude” (Amendment XIII) or discriminating against citizens regarding their right “to vote” on “account” of “sex” (Amendment XIX), “race, color, or previous condition of servitude” (Amendment XV), inability “to pay any poll tax or other tax” (Amendment XXIV) or even after they are “eighteen years of age” (Amendment XXVI).

No government can exercise or restrain any “powers” that were expressly “reserved” to “the people” (Amendment X). The power (the “freedom”) of “speech” (including voting) regarding our self-government according to our own “religion” (our own thoughts and consciences) (Amendment I) clearly and emphatically was reserved to the people.

Moreover, the mere fact that a right was not enumerated (or that the Constitution was not amended to establish that a practice violated a right) cannot be exploited “to deny or disparage” any rights “retained by the people” (Amendment IX). That is, after all, an important part of the reason we ordained and established a Supreme Court and federal judiciary with the power to “hold office during good behaviour” (Article III). Our judges hold their offices only to “establish Justice” and “secure the Blessings of Liberty to ourselves” (Preamble).¹

As Alexander Hamilton emphasized, we cannot divine the truth about our rights by merely rummaging through old parchments and papers; we must look to self-evident truths of human nature:

The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.

Justices Kagan, Ginsburg, Breyer and Sotomayor (and James Madison) emphasized the same in a powerful dissenting opinion in Rucho v. Common Cause, 588 U.S. 684, 726-728 (2019). “The people are sovereign.” “The “power,” as Madison emphasized, “is in the people over the Government, and not in the Government over the people.” As Madison also emphasized, “[R]epublican liberty” demands “not only, that all power should be derived from the people; but that” our public servants “should be kept in dependence on the people.” “Free and fair and periodic elections are the key to that vision. The people get to choose their representatives.” Election day emphasizes politicians’ dependence on the people. “Election day” emphatically “links the people to their representatives, and” emphasizes to “the people their sovereign power. That day is the foundation of democratic governance.” But “partisan gerrymandering can make it meaningless.” Partisan gerrymandering “amounts” to “rigging elections.”

Knowing all the foregoing, on May 23, 2024, six SCOTUS justices led by Justice Alito in Alexander v. S.C. State Conf. of the NAACP admitted to knowing that their own decision (and the conduct of South Carolina legislators) “bears an uncomfortable resemblance to political apartheid.” It should be uncomfortable. It is so blatantly and deliberately unconstitutional as to shock the conscience.

The Alito Gang emphasized that “the State raises a partisan-gerrymandering defense” precisely “because partisan and racial gerrymanders” are “capable of yielding similar oddities in a district’s boundaries” precisely because there easily can be “a high correlation between race and partisan preference.” “When partisanship and race correlate, it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map.” “And that is the situation in this case.” The Alito Gang even emphasized that it just “so happens” sometimes “that the most loyal Democrats happen to be black Democrats” and “the State” officials manipulating maps of voters may even may be highly “conscious of that fact.”

Apartheid means “separation” or “segregation.” Examples in use include “cultural apartheid” and “gender apartheid.” So although apartheid often is seen as implying segregation based (at least in part) on skin color, that word and its use are not limited to what is commonly called “race.” As is very well known, apartheid historically has been based on political, social or religious viewpoints (even if it wasn’t called “apartheid” at the time). Even before Alexander, not even the SCOTUS justices in Alito’s Gang used apartheid to mean segregation based solely on skin color.

In 2020, Justices Alito and Thomas in their dissenting opinion in Bostock v. Clayton Cty., 590 U.S. 644 (2020) cited a 1997 article, Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship. In 2003, Chief Justice Roberts joined in a dissenting opinion in Lawrence v. Texas, 539 U.S. 558 (2003) repeatedly citing and quoting a 1999 book, Challenging the Apartheid of the Closet.

In 2008, Chief Justice Roberts issued the majority opinion in Medellin v. Texas, 552 U.S. 491 (2008). Three justices (including Justice Breyer) issued a dissenting opinion in which they cited a 2007 article, The Insular Cases: The Establishment of a Regime of Political Apartheid. The article’s author argued that SCOTUS, by deciding “the Insular Cases as it did” was “responsible for the establishment of a regime of de facto political apartheid, which continues in full vigor.” The article concluded with a clarifying sentence: “The continued vitality of [SCOTUS’s so-called Insular Cases] represents a constitutional antediluvian anachronism that has created a de jure and de facto condition of political apartheid for the U.S. citizens that reside in Puerto Rico and the other territories.”

Remarkably recently, Justice Thomas (who was in Alito’s Gang in Alexander) acknowledged that a particular color on maps was used as a proxy for a particular color of skin. Such maps were color-coded to intentionally enforce and exacerbate economic apartheid. In 2023, Justice Thomas, in his dissenting opinion in Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023) cited a 1993 book, American Apartheid: Segregation and the Making of the Underclass. Justice Thomas did so in a paragraph in which he discussed how “Federal and State Governments’ selective” conduct intentionally “exacerbated” economic “disparities.” Justice Thomas even emphasized how purported and presumed “risk” effectively was a substitute for people’s “race.” “Ostensibly to identify (and avoid) the riskiest recipients” of potential financing, government employees “created color-coded maps of every metropolitan area in the nation.” “Green meant safe; red meant risky. And, regardless of class, every neighborhood with Black people earned the red designation.”

Above, Justice Alito and his gang quoted a phrase (“an uncomfortable resemblance to political apartheid”) which first appeared in SCOTUS precedent in 1993 in Shaw v. Reno, 509 U.S. 630 (1993). The particular language that the Alito Gang excerpted is well worth considering in its greater context. The majority opinion in Shaw included the following analysis about the effect (and quite possibly the intent) of the manipulation of maps by South Carolina legislators at issue in Alexander:

A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group -- regardless of their age, education, economic status, or the community in which they live -- think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible . . . . By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.

The dissenting opinion in Shaw included the following about the tricks and tactics that politicians use to manipulate maps to entrench themselves in power (cleaned up):

gerrymanders come in various shades: At-large voting schemes; the fragmentation of a [disfavored] group among various districts so that it is a majority in none, otherwise known as “cracking;” the “stacking” of a large [disfavored] population concentration . . . with [an even] larger [preferred] population, and, finally, the concentration of [disfavored voters] into districts where they constitute an excessive majority, also called “packing.” In each instance, [an unconstitutional factor] is consciously utilized by the legislature [to manipulate the] electoral [process to the benefit of the people and party in power].

When state legislators discriminate, specifically, to target voters to mute or minimize their voices based on their political viewpoint, they necessarily are promoting and entrenching political apartheid. Federal judges may not be capable of saying where lines should be drawn to segregate voters. Even so, they must say that legislators’ must not draw lines based on considerations that they know violate our Constitution. Every justice responsible for Alexander knew that the gerrymandering at issue admittedly and irrefutably was based on considerations that violate our Constitution.

1. The relevant rights, liberty and sovereignty were well known to the Founders and Framers. In 1748, Montesquieu famously emphasized in The Spirit of the Laws, “In a democracy the people are in some respects the sovereign” (involved in the process of making law), and in other respects “the people” are the “subject” of laws. The people “exercise” their “sovereignty” by “their suffrages, which are their own will.” By voting “the sovereign’s will” becomes “sovereign.”

“The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty.” “[I]n a country of liberty, every man who is supposed a free agent ought to be his own governor.” For example, “the enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.”

“In republics” even “women are free by the laws.” But “[i]n despotic governments, women” are “in a state of the most rigorous servitude.” And “as all men are born equal, slavery must be accounted unnatural.” “[I]t is contrary to the nature of things that” any “slavery should be perpetual.” Sometimes “reducing people to slavery” might be “necessary for the preservation of [a] conquest.” “Slavery in conquests,” however, “is an accidental thing.” Any “people enslaved ought to be rendered capable of becoming subjects” (citizens).