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The Court has eviscerated Section 1983, which opened the doors of the federal courthouse to those victimized by state abuse of power, giving individuals a means to hold officials accountable.
If we step back to look at the struggles to guarantee the right to vote and to hold the police accountable for engaging in brutal conduct and trampling on constitutional rights, is there a common thread that links the two together? Tragically, there is. In both areas, the Supreme Court has decimated landmark federal civil rights legislation designed to protect constitutional rights, end racial injustices, and check state abuse of power.
The end of the last Supreme Court term provided a glaring reminder of this when the Court took another step to dismantle the Voting Rights Act. It was just the latest example of a recurring phenomenon: a Court dominated by conservative justices who regularly tout their textualist bona fides while repeatedly gutting legislation enacted by Congress to ensure that states respect the Constitution’s bedrock guarantees of liberty, equality, and democracy.
During the Reconstruction period after the Civil War, and again during the civil rights movement of the 1960s, Congress enacted some of our nation’s most important civil rights laws. Against the backdrop of racial terror, Section 1983, a key part of the Civil Rights Act of 1871, opened the doors of the federal courthouse to those victimized by state abuse of power, giving individuals a means to hold state and local officials accountable in a court of law. Nearly a century later, Congress heeded Martin Luther King’s demand to “give us the ballot,” enacting the Voting Rights Act to revive the 15th Amendment’s promise of a vibrant, participatory multiracial democracy.
Both statutes, however, have been eviscerated by the Supreme Court.
The Roberts Court will go down in history as the Court that dismantled the Voting Rights Act.
Today, it is very difficult to successfully sue the police and other government actors for violating constitutional rights because the Supreme Court has invented the doctrine of qualified immunity, holding that government officials cannot be held liable for violating constitutional rights unless they violated clearly established law. In practice, unless the plaintiff can point to a prior court ruling involving essentially identical facts, courts insist that the law is not clearly established.
But the words “clearly established law” do not appear anywhere in the U.S. Code. They are part of the fabric of the law because the Supreme Court essentially rewrote Section 1983, insisting that government officials need to be protected from being sued. As Justice Clarence Thomas recently put it in dissenting from the Court’s refusal to review a ruling which held that a public-university official could not be sued for violating a student’s free-speech rights, the Supreme Court simply “conjur[ed] up blanket immunity” out of whole cloth. And the Roberts Court has expanded it by leaps and bounds, applying the doctrine in a sweeping fashion to immunize police officers who killed individuals by needlessly employing deadly force and school officials who strip-searched a 13-year-old in a search for common painkillers. As a result, even when government actors engage in brutal conduct, courts often refuse to hold them accountable. Accordingly, the landmark statute designed to open the courthouse doors to persons aggrieved by government abuse of power now keeps them bolted shut.
Now, what the Court has done to Section 1983, it has also done to the Voting Rights Act’s nationwide prohibition against racial inequality at the polls. Brnovich v. Democratic National Committee, one of the most important cases decided by the Supreme Court last term, rewrites the Voting Rights Act by creating new defenses that have no basis in the text of the law. The decision demands that courts defer to state and local decision-makers, and deploys a deeply troubling view of federalism that allows state and local actors to trample on the fundamental right to vote.
In Brnovich, Justice Samuel Alito’s majority opinion devised a series of made-up factors to guide lower courts’ resolution of Voting Rights Act claims. These factors threaten to give states something close to carte blanche to regulate the electoral process. If a state imposes what Justice Alito calls the “usual burdens of voting,” or conforms to legislation existing in the states in 1982, or furthers legitimate state interests, including regulating purported voter fraud, courts, Alito insists, should not intervene. None of these factors come from the Voting Rights Act’s text. Like qualified immunity’s “clearly established law” requirement, the majority simply conjured these new requirements out of thin air, ignoring that the whole point of the Voting Rights Act was to constrain state authority in order to ensure that the federal constitutional right to vote would be equally enjoyed by all regardless of race.
At first glance, the Court’s decisions to hamper voting rights and to make it harder to hold police accountable for violating constitutional rights have nothing to do with each other. But there is a deep connection between the two: In both areas, the Supreme Court has gutted landmark federal civil rights legislation by insisting that the text enacted by Congress to protect constitutional rights must be read to give broad deference to state and local governments and their agents.
The Court’s decisions to establish and extend qualified immunity relied on its contention that “permitting damages suits against government officials” will “unduly inhibit officials in the discharge of their duties.” Qualified immunity, the Court has said, “exists to safeguard government.”
In a similar vein, Brnovich insists that the Voting Rights Act must be read to preserve broad state authority lest the court “transfer much of the authority to regulate election procedures from the States to the federal courts.” Brnovich is more concerned with protecting state prerogatives than ensuring the right to vote.
The Voting Rights Act that emerges from Brnovich would be unrecognizable to Martin Luther King Jr., Congressman John Lewis, and countless others who put their lives on the line to vindicate our Constitution’s promise of a multiracial democracy.
The version of federalism the Court invokes in these cases is deeply flawed: It ignores the ways in which the Reconstruction Amendments transformed our constitutional system to ensure states obeyed fundamental principles of liberty and equality for all. The Roberts Court simply refuses to pay respect to what has been called our “second founding,” which altered our federal system to prevent states from trampling on fundamental rights, including the right to vote. Where Congress acts to enforce these amendments, state prerogatives must necessarily give way. The false view of federalism the Court deploys turns the Constitution on its head, prioritizing state prerogatives over the enforcement of bedrock rights.
The Roberts Court will go down in history as the Court that dismantled the Voting Rights Act. It is also the Court responsible for aggressively expanding the doctrine of qualified immunity. These two developments are not a coincidence. The respect for enacted text that the Roberts Court so regularly preaches is often missing in action when the Court considers laws that Congress has enacted to make real our most cherished fundamental rights.
