Alabama’s redistricting case shows — again — whose rights matter to the Supreme Court

Time after time, in case after case, from capital punishment to voting, from pandemic restrictions to abortion, the conservative justices’ priorities manifest themselves. They leap to act on behalf of state officials who might be inconvenienced by having to wait for a full ruling; they are similarly solicitous of religious individuals who claim that their constitutional protections are being infringed. Meanwhile, inmates facing execution, women seeking abortions, minority voters challenging voting restrictions — their arguments for urgent intervention are routinely discounted and rejected.

This judicial double standard was once again on flagrant display Monday as the court, splitting 5 to 4, intervened in an Alabama redistricting case. African Americans, who account for 27 percent of Alabama residents, constitute a majority in just one of its seven congressional districts. A lower-court panel found that the redrawn districts violate the Voting Rights Act.

The justices agreed to review that ruling — fair enough. But in the meantime, the conservative majority stepped in to put on hold the lower court’s order that the state draw a new map, in time for the midterm elections, including a second majority-Black district.

Whose rights matter? In this case, the conservative majority airily privileged the convenience of state legislators over the ability of Black voters to secure fair representation — all while pretending it was simply following the rules rather than putting a heavy thumb on the scale for one side.

“Pretending” might overstate matters, since the majority did not explain its action. That was left to a concurrence from Justice Brett M. Kavanaugh. Joined by Justice Samuel A. Alito Jr., Kavanaugh insisted that blocking the lower-court order was a simple matter of maintaining regular judicial process, letting the case be decided after full briefing and argument. He invoked what he described as a “bedrock tenet of election law” — that courts shouldn’t “swoop in and re-do a State’s election laws in the period close to an election.”

Except that Alabama’s primary isn’t until late May. Absentee voting will start on March 30 — but that leaves plenty of time for the legislature to redraw a few districts. It took just five days to produce the new map. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh lamented.

What’s missing here is any expression — any hint — of concern for the countervailing rights of Black voters. Inconvenience to state officials who have to scramble to redraw maps or candidates who aren’t sure about the contours of their districts? Huge. Infringement on the ability of Black residents to have their political voices fully heard? Not so much.

Alabama has an ugly history of voting discrimination. Black candidates have rarely succeeded in winning election, especially to statewide and federal office. This case involves a challenge under the Voting Rights Act, which is supposed to protect the rights of minority voters. So you might think those rights would be given some consideration — especially since the court intervening to grant a stay is supposed to be an “extraordinary” action.

It would be bad enough if the court’s skewed approach to dispensing justice were limited to voting rights cases. It’s not.

Whose rights matter? Not the rights of women seeking abortions in Texas. The court has stood by for five months, allowing the flagrantly unconstitutional Texas law prohibiting abortion after six weeks to remain in effect. What interests of Texas would be grievously harmed if the law were put on hold while the case is litigated — and how could they possibly outweigh the rights of women in the state to determine whether to continue their pregnancies? Talk about irreparable harm.

Whose rights matter? Not the rights of those facing imminent execution. The conservative majority (this time with Justice Amy Coney Barrett disagreeing) intervened last month to allow the execution of an Alabama man, Matthew Reeves. Two lower courts had said the execution violated federal disabilities law because the man lacked the cognitive ability to fill out a form choosing his preferred method of execution.

The question wasn’t whether the state could go ahead and kill him — just whether it would have to wait a few weeks to do so by a newly approved method called nitrogen hypoxia rather than by lethal injection. (Reeves concluded, once someone was able to explain the form to him, that lethal injection would be more painful.) A few weeks’ delay hardly seems like asking too much.

Whose rights matter? Oh yes, the rights of religious individuals who claim they are being discriminated against — for example, by pandemic restrictions. In those cases, the conservative justices are only too happy to hasten to their defense. Consider the conservative majority’s indulgence of some New York synagogues and churches that challenged pandemic restrictions on in-person services in 2020. As Chief Justice John G. Roberts Jr. pointed out in dissent, the attendance limits about which they complained had already been lifted.

When it comes to this Supreme Court, some rights are more equal than others. Some state officials deserve deference and accommodation; others are subject to judicial second-guessing. This is two-tier justice, as sloppily reasoned as it is unfairly dispensed.