As you say, both sides on these issues are willing to flop from textualist to purposive depending upon which approach serves their goals. The result is that the judiciary has allowed itself to become entirely tainted by partisanship. It brings dishonor to the court.
It IS ironic that in Virginia, the majority opinion expresses concern for being scrupulous about voters being able to express their preferences, and the result is to reverse the outcome of the election that JUST TOOK PLACE.
And in various voting rights act cases, the Supreme Court is basically saying that gerrymandering for partisan politics is OK, and would always have been OK even back into the mid-60's. They are not saying that times have changed and we no longer need these protections, like they have said on DEI issues. They are saying that so long as blacks vote as a block for one party over the other, it's OK now and would always have been OK to fracture and dilute their votes. The great increase in the number of black legislators that did occur would not have occurred under their interpretation, and we will now see it reverse back to the way it was before all of the voting rights legislation. They are putting the genie back in the bottle.
There are two albatrosses that history will hang around John Roberts' neck: 1) cases that allow the "free expression" of partisan politics to roll back civil rights legislation and 2) Citizens United. #1 is the horse but #2 is the cart. It's assisting the GOP in their use of the banner of white supremacy to attract enough voters to facilitate the control of the political process by the new aristocracy of extreme wealth. THAT is what this court is enabling.
I wonder if Gabe could expound on the actual VRA ruling, as George alludes to above. Did they rule part of it unconstitutional, or are they just changing how it is interpreted? And if unconstitutional, could past elections actually be affected?
It’s a little complicated! The court did not say the VRA itself was unconstitutional, instead they said it had previously been interpreted it ways that were unconstitutional, and now they are reinterpreting it so that it will be enforced in accordance with the Constitution. So they didn’t strike the law down as unconstitutional, but they said it needed to be interpreted differently to avoid clashing with the Constitution. As for past elections, no past elections will be affected, but maps that were used in past elections can be redrawn so that the 2026 elections will be held under different lines. (That is, no member of Congress who was elected in 2024 could suddenly be booted out mid-term because of this ruling. But their 2026 district lines could look different than their 2024 lines.)
Abolish the Electoral College so that candidates are elected based on majority rules, not the absurd system we have now where only certain states can hold sway over elections. And eliminate gerrymandering by using ONLY the Census taken every ten years to define the lines for House and state elections. Lock a bunch of unnamed statisticians (or whatever the best type of impartial people are for this work) in a secure secret location for a few weeks and have them come up with the national plan. Why won't people embrace this solution? Seems logical and fairly simple.
Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence
Excellent discussion. It's notable that Nate Silver came out with a map of the state supreme courts this morning showing Virginia as the only state supreme court in the country that does not lean one way or the other politically.
It looks like the VA decision caught many flatfooted but it was widely known their decision was very possible, even likely. Legal pundits who I consider pretty middle of the road like Michael Smerconish, Elie Hoenig and Dan Abrams discussed the case more than once, and felt there was a strong chance it would be overturned.
It's pretty obvious both parties just want to win and the legal arguments are regarded mainly as impediments to be overcome.
I’m curious about your footnote 5. If states are responsible for elections, how can the federal government take control over state voting districts? I can see how it might require these districts to be drawn in a manner that does not violate the constitution but I don’t see how it could actually draw the maps, a vote by the Senate notwithstanding.
This is untested, so it’s unknown whether this is something Congress would ultimately be able to do. The argument in favor would be rooted in the Elections Clause of the Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” That’s a pretty broad grant of power to Congress to override state election laws. The argument against would involve the anticommandeering doctrine, which limits when the federal government can override state sovereignty — though the court has generally deferred to Congress on commandeering disputes over election law: https://harvardlawreview.org/print/vol-133/h-r-1-116th-cong-2019/?utm_source=chatgpt.com
Thank you--again. As for "look at the bare text at hand, consult a dictionary to define each word or phrase"--this sent chills down my spine. The left has already been bending English out of all recognition; this just encourages them to rewrite the whole dictionary to suit themselves. But, of course, there will always be the caveat "it depends on what the meaning of 'is' is" to allow switching from textualism to purposivism as needed.
Then there's this: "It is harder for [politicians] to actually be honest about what they are asking their audiences to get upset about, because that would require delving into complex conversations where the answers aren’t as simple as the partisan bottom-line." Yeah, no kidding. Thanks for helping stem the tide of stupid.
I'm curious about your assertion that "the Left has already been bending English out of all recognition." Language is inherently bendable, molded based on societal interpretation on any given day. That is not "The Left's" doing, it's simply human nature. "Make America Great Again" likely means something different to every Trump voter out there - so how does the Right define "great"?
The Callais decision is indefensible. As documented elsewhere, they relied on junk science to justify their interpretation. This “both-sides”ism when one side is authoritarian nonsense is getting an unfollow from me.
Yeeeeeeah, I appreciate Gabe's effort to give defense to conservative reasoning on this case, but even his own article here makes textualism in this case basically undefendable. "Sure, this case has tons of precedent and history behind it, but what does the word "opportunity" really mean?!" Nope. The conservatives got this one wrong.
Hi Ashley, thanks for writing. My point in the piece is that there are different methods of legal interpretation. I don’t think it’s right to look at an argument that de-emphasizes precedent and history and instead focuses on parsing the meaning of the word “opportunity” as indefensible. Instead, you can look at that and say “Oh, that’s just a textualist properly applying textualism.” It’s perfectly fine if purposivist reasoning seems like a better method to you, but I think it’s important to understand the other methods out there, and how they work. Even if you think their method isn’t the right one, as long as someone is applying their method correctly, you can see it as defensible within the bounds of how their method aims to look at law. And if purposivist reasoning does align more with how you think judges should rule, I’m curious what your thoughts are on the proper verdict in the Virginia case.
I think that the "right" method of legal interpretation is generally a moderate approach - what does the text mean AND how does it get applied in the real world? What is the intent AND the impact? To ignore one in favor of the other is to apply a logic that doesn't stand up to real world requirements for justice. I think it's completely valid that the Virginia constitution has a requirement of a general election in between amendments AND ALSO we should examine the impact of this particular amendment in this case. If there is evidence that a proper application of the "general election" rule would have had a significant impact on the results, then it is appropriate for the court to interfere. Otherwise, it seems like meddling for meddling's sake - not an attempt at real-world justice.
I think that moderate approach makes a lot of sense -- my only issue with it is that it’s hard to apply. How would we know whether proper application of the "general election" rule would have had a significant impact on the results or not? Not sure we want judges making guesses about election prognostications. And then suddenly you have judges sometimes applying a rule, and sometimes not, which seems like a dangerous path to go down when we’re talking about amending a Constitution. But I do agree that there’s wisdom in both approaches and it can make sense to strike a middle ground. I, for one, am glad I’m not a judge and am spared having to make these difficult decisions!
Right, well, isn't that where "judgment" comes in? If we want to just apply a hard and fast rule, AI can do that. You're right that it's not an easy position to be in. But the most valuable judges are those that can apply good judgment - not just consistently, but with a measure of morality, humility, intelligence, and recognition of societal needs (or in short, with humanity in mind). I don't want a judge who uses a dependable rule or method - I want one that uses judgment.
I think too often judges use their "rules" or "methods" as a defense of their judgments rather than just standing behind the ruling on its own merits.
Fair! My piece obviously focused on interpretative methods, but obviously there are also different views on the role of a judge itself that come into play here.
I can tell Gabe is a white hetero male just by his assumption that the MAGA Republicans aren't working nationwide on a set strategy to lock in the House forever. I'm going to take the charitable position here and say that Gabe can't see the privilege he has, much less how it operates, precisely because he was born into it.
Gabe, who is Clarence Thomas married to? Go look that up, as well as her role in training right-wing racist SCOTUS clerks in how to be more effective in their bigotry.
He is the poster child for what Republicans THINK DEI is: promoting unqualified people.
They mock him and his pick-me-ism and see him (who has been told how to vote by both his white trophy wife Ginni as well as the succession of far-right judge mentors starting with Rhenquist and continuing through Scalia and now Alito) as proof of the inferiority of Black people (as they try to forget that the legendarily excellent Thurgood Marshall existed or that Ketanji Brown Jackson exists)
He didn't say that. Republicans (and not just MAGA, whatever that is) are JUST as set on setting a strategy to lock in the House forever as the Democrats are--this has been going on forever on both sides and both sides are equally guilty. What he DID say is that people are attributing thoughts/actions to MAGA that simply aren't in line with the complications of the issues at hand. But again, BOTH sides are guilty of this.
[Looks for any viable counter-argument to what I posted]
Look, I'm white, too. I grew up not realizing all the advantages my skin gave me. It's called 'not seeing the forest because you're one of the trees'. I did understand, from watching how my mother spent her working life training the male golf buddies her bosses hired to be her new bosses instead of promoting her, how sexism worked.
I also see the intense defensiveness that so many white people, especially white hetero males, elicit when they hear the words "white privilege": "I grew up poor!" (As if he didn't know that if he'd not been white he'd have probably grown up poorer, or perhaps not at all)
As you say, both sides on these issues are willing to flop from textualist to purposive depending upon which approach serves their goals. The result is that the judiciary has allowed itself to become entirely tainted by partisanship. It brings dishonor to the court.
It IS ironic that in Virginia, the majority opinion expresses concern for being scrupulous about voters being able to express their preferences, and the result is to reverse the outcome of the election that JUST TOOK PLACE.
And in various voting rights act cases, the Supreme Court is basically saying that gerrymandering for partisan politics is OK, and would always have been OK even back into the mid-60's. They are not saying that times have changed and we no longer need these protections, like they have said on DEI issues. They are saying that so long as blacks vote as a block for one party over the other, it's OK now and would always have been OK to fracture and dilute their votes. The great increase in the number of black legislators that did occur would not have occurred under their interpretation, and we will now see it reverse back to the way it was before all of the voting rights legislation. They are putting the genie back in the bottle.
There are two albatrosses that history will hang around John Roberts' neck: 1) cases that allow the "free expression" of partisan politics to roll back civil rights legislation and 2) Citizens United. #1 is the horse but #2 is the cart. It's assisting the GOP in their use of the banner of white supremacy to attract enough voters to facilitate the control of the political process by the new aristocracy of extreme wealth. THAT is what this court is enabling.
I wonder if Gabe could expound on the actual VRA ruling, as George alludes to above. Did they rule part of it unconstitutional, or are they just changing how it is interpreted? And if unconstitutional, could past elections actually be affected?
It’s a little complicated! The court did not say the VRA itself was unconstitutional, instead they said it had previously been interpreted it ways that were unconstitutional, and now they are reinterpreting it so that it will be enforced in accordance with the Constitution. So they didn’t strike the law down as unconstitutional, but they said it needed to be interpreted differently to avoid clashing with the Constitution. As for past elections, no past elections will be affected, but maps that were used in past elections can be redrawn so that the 2026 elections will be held under different lines. (That is, no member of Congress who was elected in 2024 could suddenly be booted out mid-term because of this ruling. But their 2026 district lines could look different than their 2024 lines.)
Abolish the Electoral College so that candidates are elected based on majority rules, not the absurd system we have now where only certain states can hold sway over elections. And eliminate gerrymandering by using ONLY the Census taken every ten years to define the lines for House and state elections. Lock a bunch of unnamed statisticians (or whatever the best type of impartial people are for this work) in a secure secret location for a few weeks and have them come up with the national plan. Why won't people embrace this solution? Seems logical and fairly simple.
Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence
Excellent discussion. It's notable that Nate Silver came out with a map of the state supreme courts this morning showing Virginia as the only state supreme court in the country that does not lean one way or the other politically.
It looks like the VA decision caught many flatfooted but it was widely known their decision was very possible, even likely. Legal pundits who I consider pretty middle of the road like Michael Smerconish, Elie Hoenig and Dan Abrams discussed the case more than once, and felt there was a strong chance it would be overturned.
It's pretty obvious both parties just want to win and the legal arguments are regarded mainly as impediments to be overcome.
I’m curious about your footnote 5. If states are responsible for elections, how can the federal government take control over state voting districts? I can see how it might require these districts to be drawn in a manner that does not violate the constitution but I don’t see how it could actually draw the maps, a vote by the Senate notwithstanding.
This is untested, so it’s unknown whether this is something Congress would ultimately be able to do. The argument in favor would be rooted in the Elections Clause of the Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” That’s a pretty broad grant of power to Congress to override state election laws. The argument against would involve the anticommandeering doctrine, which limits when the federal government can override state sovereignty — though the court has generally deferred to Congress on commandeering disputes over election law: https://harvardlawreview.org/print/vol-133/h-r-1-116th-cong-2019/?utm_source=chatgpt.com
Thank you--again. As for "look at the bare text at hand, consult a dictionary to define each word or phrase"--this sent chills down my spine. The left has already been bending English out of all recognition; this just encourages them to rewrite the whole dictionary to suit themselves. But, of course, there will always be the caveat "it depends on what the meaning of 'is' is" to allow switching from textualism to purposivism as needed.
Then there's this: "It is harder for [politicians] to actually be honest about what they are asking their audiences to get upset about, because that would require delving into complex conversations where the answers aren’t as simple as the partisan bottom-line." Yeah, no kidding. Thanks for helping stem the tide of stupid.
I'm curious about your assertion that "the Left has already been bending English out of all recognition." Language is inherently bendable, molded based on societal interpretation on any given day. That is not "The Left's" doing, it's simply human nature. "Make America Great Again" likely means something different to every Trump voter out there - so how does the Right define "great"?
The Callais decision is indefensible. As documented elsewhere, they relied on junk science to justify their interpretation. This “both-sides”ism when one side is authoritarian nonsense is getting an unfollow from me.
Yeeeeeeah, I appreciate Gabe's effort to give defense to conservative reasoning on this case, but even his own article here makes textualism in this case basically undefendable. "Sure, this case has tons of precedent and history behind it, but what does the word "opportunity" really mean?!" Nope. The conservatives got this one wrong.
Hi Ashley, thanks for writing. My point in the piece is that there are different methods of legal interpretation. I don’t think it’s right to look at an argument that de-emphasizes precedent and history and instead focuses on parsing the meaning of the word “opportunity” as indefensible. Instead, you can look at that and say “Oh, that’s just a textualist properly applying textualism.” It’s perfectly fine if purposivist reasoning seems like a better method to you, but I think it’s important to understand the other methods out there, and how they work. Even if you think their method isn’t the right one, as long as someone is applying their method correctly, you can see it as defensible within the bounds of how their method aims to look at law. And if purposivist reasoning does align more with how you think judges should rule, I’m curious what your thoughts are on the proper verdict in the Virginia case.
I think that the "right" method of legal interpretation is generally a moderate approach - what does the text mean AND how does it get applied in the real world? What is the intent AND the impact? To ignore one in favor of the other is to apply a logic that doesn't stand up to real world requirements for justice. I think it's completely valid that the Virginia constitution has a requirement of a general election in between amendments AND ALSO we should examine the impact of this particular amendment in this case. If there is evidence that a proper application of the "general election" rule would have had a significant impact on the results, then it is appropriate for the court to interfere. Otherwise, it seems like meddling for meddling's sake - not an attempt at real-world justice.
I think that moderate approach makes a lot of sense -- my only issue with it is that it’s hard to apply. How would we know whether proper application of the "general election" rule would have had a significant impact on the results or not? Not sure we want judges making guesses about election prognostications. And then suddenly you have judges sometimes applying a rule, and sometimes not, which seems like a dangerous path to go down when we’re talking about amending a Constitution. But I do agree that there’s wisdom in both approaches and it can make sense to strike a middle ground. I, for one, am glad I’m not a judge and am spared having to make these difficult decisions!
Right, well, isn't that where "judgment" comes in? If we want to just apply a hard and fast rule, AI can do that. You're right that it's not an easy position to be in. But the most valuable judges are those that can apply good judgment - not just consistently, but with a measure of morality, humility, intelligence, and recognition of societal needs (or in short, with humanity in mind). I don't want a judge who uses a dependable rule or method - I want one that uses judgment.
I think too often judges use their "rules" or "methods" as a defense of their judgments rather than just standing behind the ruling on its own merits.
Fair! My piece obviously focused on interpretative methods, but obviously there are also different views on the role of a judge itself that come into play here.
I can tell Gabe is a white hetero male just by his assumption that the MAGA Republicans aren't working nationwide on a set strategy to lock in the House forever. I'm going to take the charitable position here and say that Gabe can't see the privilege he has, much less how it operates, precisely because he was born into it.
Gabe, who is Clarence Thomas married to? Go look that up, as well as her role in training right-wing racist SCOTUS clerks in how to be more effective in their bigotry.
Ironically, Clarence Thomas is the poster child for DEI.
He is the poster child for what Republicans THINK DEI is: promoting unqualified people.
They mock him and his pick-me-ism and see him (who has been told how to vote by both his white trophy wife Ginni as well as the succession of far-right judge mentors starting with Rhenquist and continuing through Scalia and now Alito) as proof of the inferiority of Black people (as they try to forget that the legendarily excellent Thurgood Marshall existed or that Ketanji Brown Jackson exists)
Right, he is the poster child for everything that people who are against DEI accuse it of being.
He didn't say that. Republicans (and not just MAGA, whatever that is) are JUST as set on setting a strategy to lock in the House forever as the Democrats are--this has been going on forever on both sides and both sides are equally guilty. What he DID say is that people are attributing thoughts/actions to MAGA that simply aren't in line with the complications of the issues at hand. But again, BOTH sides are guilty of this.
[looks for the eyeroll emoji]
[Looks for any viable counter-argument to what I posted]
Look, I'm white, too. I grew up not realizing all the advantages my skin gave me. It's called 'not seeing the forest because you're one of the trees'. I did understand, from watching how my mother spent her working life training the male golf buddies her bosses hired to be her new bosses instead of promoting her, how sexism worked.
I also see the intense defensiveness that so many white people, especially white hetero males, elicit when they hear the words "white privilege": "I grew up poor!" (As if he didn't know that if he'd not been white he'd have probably grown up poorer, or perhaps not at all)