Thread by @jholbo1

Scott and everyone else (I'm all tangled up in @HeerJeet's thread) is highlighting this bit, and making the CRT connection. But there's more. 1/

https://twitter.com/soashworth/status/1410700511720972288

The blackletter-plus-intent of the VRA was to be strict about this, especially after 1982. And the SC backs it up in unanimous "Thornburg v. Gingles" (1986). 2/ justice.gov/crt/section-2-…

Alito & co. are not alleging the VRA is unconstitutional, or that "Thornburg v. Gingles" was wrongly decided. They are in effect rewriting the VRA to make it weaker, on the grounds that this is better. It's worth thinking about what a bone-deep betrayal of textualism this is. 3/

Posner said it best, in his old Scalia takedown: "text as such may be politically neutral, but textualism is conservative." Why would textualism be conservative? (This point is so important, so listen carefully!) 4/ newrepublic.com/article/106441…

Textualism aims to turn every major legislative act into a cautionary 'monkey's paw' horror story. We know how those end! The genie/paw takes you literally and now you'll be lucky if you can use your last wish even to get back where you started! 5/

Don't wish for big government nice things. For 'textualist' judges will act like wizened Monkey's Paws, interpreting asks in light of unforeseen situations perversely. Textualism is aspirational super-legislative social engineering of rhetoric of reaction into law. 6/

Now, back to the VRA and the latest decision. The rather extreme, hence burdensome, strict, inflexible effect of the letter of the law is clearly anticipated and intended by Congress. This law is supposed to be hard on the states! 8/

The intent of Congress was to hobble any attempt to do anything tricksy whatsoever in the vicinity of voting rights. No sneaky pretextual trying to get around it either! This is the intended effect of the 'totality of circumstances' clause. 9/

And now the SC is saying, in effect: totality of the circumstances today means we gotta ignore 'totality of circumstances', man! 10/

The Justices are not just not being textualists, they are being bizarro anti-textualists. They go against text AND clear intent-function. That the con Justices are perfectly happy to be bizarro anti-textualists in a partisan way tells you how seriously they take textualism. 11/

Their argument is that the original amendment was intended for an environment with somewhat different voting rules. But the textualist response would be: if Congress wants to re-amend that 1982 amendment, in light of evolving voting practices, that's for Congress, not the SC. 12/

There simply is no reasonable presumption that the states should NOT be forced to adopt a least-restrictive means requirement. The stated reasons for the AZ laws are to prevent actually non-existent voter fraud, so that's going to be a heavy lift. But that's on AZ. 13/

This is a SC that is perfectly happy to demand that the government respect religious liberty in such a 'least-restrictive' way. Everything that touches on religious liberty must do so in a 'least burdensome' way. The logic in the voting law case would be even clearer. 14/

Here, from Wikipedia, we get a list of considerations that would reasonably factor into a finding of violation of the 1982 amendment. Consider that AZ is currently running a mass 'fraudit' of the last election. How many of these clearly apply? 15/

By my count, 6 out or 9 clearly. And note that one does not need for a majority of the "Senate factors" to apply to find discrimination. And it just isn't hard to think of a lot of sensible voting law changes that would score a safe 0. 16/

Didn't quite pull the thread through on this one (long though the thread is!), so here goes: textualism is all about hemming in Congress, strictly. But when Congress hems in the states, strictly, suddenly the attempt to hem strictly needs to be read all loosey-goosey. Irony! /end