The supreme court’s takedown of American democracy is complete

Writing in 1943, the historian Henry Steele Commager delivered both a stern history lesson and a warning about the United States supreme court. The court, he said, had never been a friend to US democracy, and it never would be. For anyone committed to the advancement of majority rule, he added, judicial review “is wrong in theory and dangerous in practiceâ€.

The danger that Commager noted was on full display on 29 April 2026, when the supreme court eviscerated section 2 of the 1965 Voting Rights Act. As the Department of Justice explains, section 2 “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups … or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority groupâ€.

But the Voting Rights Act decision is only the latest in a string of decisions in which the conservative-dominated supreme court has used its version of constitutional interpretation to wage war on constitutional democracy. Those decisions have opened the floodgates to the corrupting influence of money in politics, removed the federal government from the business of ensuring that states do not draw legislative districts in ways that disadvantage minority voters, and given the green light to partisan gerrymandering.

As we try to come to terms with what the court did to section 2, we need to keep those other decisions in mind. They show what Commager long ago observed: that the only reliable way to preserve and improve US democracy is to act democratically by winning at the ballot box and prevailing in the legislative process.

That lesson should inspire a massive turnout in the November election and a mass movement to pressure Congress to take steps to protect and reinvigorate democratic institutions and practices in this country.

Before saying more about the court’s gutting of section 2, let’s recall the recent supreme court cases that undermined the pillars of US democracy.

In 2010, the court took a truly significant step in that direction when it handed down its ruling in Citizens United v Federal Election Commission. That case arose, as the Brennan Center for Justice notes, “when a conservative nonprofit organization challenged campaign finance rules that stopped it from promoting and airing a film criticizing then presidential candidate Hillary Clintonâ€.

The court used the case to deliver the death knell to almost all campaign finance restrictions. In a 5-4 ruling, the court struck down “century-old prohibitions on corporate ‘independent’ spending – money that doesn’t go directly to a candidate or partyâ€.

The majority held that under the first amendment, “corporate funding of independent political broadcasts in candidate elections cannot be limited … [and] that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporationâ€.

As the Brennan Center observes: “The justices who decided Citizens United held that independent spending could not pose a substantial risk of corruption … [and] that existing transparency rules would require all the new spending they were permitting to be fully transparent.â€

Both assumptions, it adds, “have proven to be incorrectâ€, with Super Pacs playing key roles in recent presidential campaigns and even leading voter outreach operations.

In 2013, the court took the next step in its campaign against democracy, declaring two key provisions of the Voting Rights Act unconstitutional. One of them, section 4, contained a formula for determining which states had to obtain preclearance from the justice department before making any changes to their voting laws. The other, section 5, described the preclearance requirements.

Writing for the majority, the chief justice, John Roberts, found that the Voting Rights Act was “no longer responsive to the current conditions†in the voting districts to which they were applied. He argued that sections 4 and 5 “represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the statesâ€.

The result was a rash of new efforts to make voting burdensome for the very groups whose voting rights had been protected by the preclearance requirements of sections 4 and 5.

Step 3 in the court’s effort to turn the constitution into a weapon against democracy came in 2019, when it said that states were free to engage in partisan gerrymandering and to draw legislative districts with the express purpose of giving electoral advantages to the party in power.

Here again, Roberts led the way, turning to history to argue that, “aware of electoral districting problemsâ€, the Framers “chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congressâ€, with no “suggestion that the federal courts had a role to playâ€.

The court, as the attorney Emmet Bonderant argues, disregarded “thirty years of [its own] precedent†and reached a result that allows politicians to pick their voters and limits the ability of voters to pick those whom they prefer to represent them. It also allowed state legislatures to engage in racial gerrymandering if they claim it is motivated by partisan, not racial, considerations.

So it should not have been surprising that the court would do what it did on 29 April, when it made it almost impossible for anyone to prove that race plays a role in redistricting decisions.

The court found that the only way to do so is to provide convincing evidence that the legislatures intended to discriminate when they made those decisions – and it disregarded a clear congressional statement to the contrary.

In 1982, Congress enacted legislation to make clear that “a plaintiff could establish a violation of the section if the evidence established that … [a] standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political processâ€.

The court swept aside what Congress did and decided that section 2 protected minority voters only from what Justice Samuel Alito called “present-day intentional racial discrimination regarding voting†and nothing more.

Reacting to Alito’s reasoning, the Georgia senator Raphael Warnock said that the court’s attack on section 2 of the Voting Rights Act “is nothing less than a massive and devastating blow – not only to our democracy, but particularly to people of color in the south … This question about intent is … misleading, and it ignores our history.â€

In the end, the court may have ignored our history, but we should not ignore its history. Commager would not have been surprised by what has unfolded since 2010, but he would have warned Americans against despair. He would want us to get busy trying to save what is left of our democracy by using our votes and our voices.

There is no time to waste.

• Austin Sarat, associate dean of the faculty and William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty