The state contends that such a dis-
trict can be drawn only by using race as the guiding criterion, an approach that the court has rejected in the past. The court, in effect, must decide
whether to keep the map intact or to allocate another seat to Democrats by taking it away from Republicans. No one can say how public opinion
would rule on this subject, since the two parties are battling over posses- sion of a seat in Congress. By and large, conservatives have responded over the years to liberal decisions by viewing the Supreme Court through a political lens. They did not encourage defiance
In the past, the justices have said that race may be used as a “factor” in admissions but not as a “criterion,” though experience has shown that its use as a mere factor can easily slide into a criterion for those making the decisions.
ing nuanced views that abortion should be legal under some circumstances but illegal in others. The court is currently reviewing its
approach to the use of race as a criterion in college admissions in cases involving Harvard University and the University of North Carolina. In the past, the justices have said that
race may be used as a “factor” in admis- sions but not as a “criterion,” though experience has shown that its use as a mere factor can easily slide into a crite- rion for those making the decisions. On this subject, public opinion is
easy to discern. According to a recent poll conducted by the Pew Research Center, 74% of Americans oppose the use of racial factors in admission (82% oppose the use of gender). This is the case both among Republicans and Democrats, as well as among conservatives and liberals. Legislative and congressional dis- tricting is another hot-button issue
now under review by the court. Here, again, the public is divided,
mostly between the two political par- ties that have obvious stakes in the issues at play. Alabama’s Republican legislature
redrew the state’s congressional dis- tricts after the 2020 election with a map that looks much like the ones put in play after the censuses of 2000 and 2010. The map has six districts with
majorities of Republican voters and one with a majority of minority (Black) voters. Several plaintiffs associated with
the Democratic Party sued, claim- ing that the map violates the rights of minority voters under the court’s past interpretations of the Voting Rights Act. They argue that a second district
can be drawn with a Black majority if the excess voters from one district are reallocated to another one.
of court decisions; nor, except in rare cases, did they declare the court to be illegitimate, as many Democrats and progressives are now doing in response to rulings going against their wishes. Instead, conservatives encour-
aged voters to elect presidents who promised to appoint judges and jus- tices with different views on a host of subjects, including the role of the Supreme Court in a popular system of government. That conservative campaign took
a long time — four or five decades, at least, with numerous disappoint- ments along the way — but it proved eventually successful when Donald Trump won the 2016 election, in con- siderable part thanks to his promise to appoint conservative justices. Trump followed through on his
pledge, appointing Justices Neil Gor- such, Brett Kavanaugh, and Amy Coney Barrett, which gave conserva- tives their present 6-3 majority and an opportunity to reshape Supreme Court jurisprudence in several areas. The court’s approach can be criti-
cized from many directions, but it is especially wrongheaded to call it “undemocratic,” since its main thrust is to leave as many decisions as possi- ble in the hands of American voters.
James Piereson is a senior fellow at the Manhattan Institute.
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