Cowboy Law

D.B. Petrie[1]

Article III of the Constitution vests the Supreme Court with the “judicial Power” to decide “all Cases, . . . arising under this Constitution.” As the highest court in the land, the Court is the final authority on the interpretation and meaning of the text of our written Constitution. And, it has the legal authority to review and strike down any and all State (and federal) legislative acts and statutes that it deems unconstitutional or contrary to federal law.

The Constitution does NOT, however, authorize the Court, or in any individual justice sitting on the Court, to promote or impose personal or individual ideology or to dictate social policy that is not grounded in the Constitution’s text, history, or tradition–that is simply NOT the role of the Court or any individual justice. Unfortunately, as reflected by Justice Kagan’s dissenting opinion in Brnovich v. Democratic National Committee^[2], some justices are not deterred by the traditional and limited scope of their judicial role under the Constitution.

In Brnovich,the Democratic National Committee (“DNC”) challenged two Arizona voting laws: (1) a rule in some counties that those who choose to vote in person on election day must do so in their assigned precinct or their vote may not be counted (the “precinct-specific rule”) and (2) a law enacted by the Arizona legislature in 2016 (HB 2023) limiting the persons who are legally authorized to collect early ballots to postal workers, election officials, or a voter’s family, household members or caregivers (“ballot-harvesting restriction”). The DNC alleged that the laws violated Section 2 of the Voting Rights Act of 1965 (“Section 2”) and the Fifteenth Amendment^[3] of the Constitution.

After a 10-day bench trial, the Arizona district court rejected the DNC’s claims and ruled that neither Arizona’s precinct-specific rule nor its ballot-harvesting restriction violated Section 2 of the Voting Rights Act or the Fifteenth Amendment. A Ninth Circuit 3-Judge panel affirmed the district court’s rulings and upheld the Arizona laws; however, in a sharply-divided en banc^[4]decision, the Ninth Circuit reversed the district court ruling, and the decision of its own three-judge panel, and held that the Arizona laws were racially discriminatory and violated Section 2 and the Fifteenth Amendment.

Arizona appealed the Ninth Circuit decision to the Supreme Court. On July 1, 2021, the Supreme Court reversed the Ninth Circuit’s en banc ruling, affirmed the ruling of the district court (and the 3-judge panel), and held that Arizona’s voting laws did NOT violate Section 2 of the Voting Rights Act or the Fifteenth Amendment.^[5]

After carefully reviewing the background of the Voting Rights Act, Section 2, and Arizona’s voting laws, the Court (majority) acknowledged that “Arizona voting law, . . . generally makes it quite easy for residents to vote.”  The Court then conducted an extensive analysis of the text and history of Section 2 and relevant precedent (prior Supreme Court decisions) to determine the scope, meaning, and requirements of that provision of the Voting Rights Act^[6] in the context of Arizona’s precinct-specific rule and ballot-harvesting restriction.

The Court then applied Section 2 to the facts and evidence and concluded that “neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA.” Additionally, the Court held that Arizona’s ballot-collection restriction (HB 2023) was not enacted with a racially “discriminatory purpose”and, therefore, did not violate the Fifteenth Amendment. Simply put, the Court found that Arizona’s voting laws did NOT discriminate against minority voters.

In her dissenting opinion, however, Justice Kagan took a far different approach. Instead of simply analyzing and applying the text of Section 2 to the facts of the case, she engaged in an “extended effort at misdirection,” in an apparent attempt “to obscure [her true] objective.”[7] She essentially “rewrote” Section 2 to suit her objectives. She flat ignored the plain, non-discriminatory text of the Arizona laws. And, she misstated, mischaracterized, or completely disregarded the true “facts” and evidence in the case.[8]

In short, Justice Kagan’s dissenting opinion has little to do with the law or the facts and focuses instead on periods of American history and the American legal system—past and present— that, while important for all Americans to remember, have nothing to do with how Section 2 applies to Arizona’s voting laws.^[9] Justice Alito criticized Justice Kagan’s approach stating that she “spends 20 pages discussing matters that have little bearing on the questions before us . . . [and while it] provides historical background that all Americans should remember, . . . [it] does not tell us how to decide these cases.”[10]

Justice Kagan’s historical diatribe begins with an attack on the States, individually and collectively, accusing them of systemic racism and discrimination against minority voters by “continually ‘contrive[ing] new rules’ , . . to keep minority voters from the polls” and “‘pour[ing] old poison into new bottles’ to suppress minority votes.” Next, she accuses America, as a Nation, of systemic racism and discrimination against minority voters from its founding to the present time. She then insults the very integrity and character of the Nation, and the American people, claiming that its “basest impulse” is and always has been to discriminate against minority voters. Then Justice Kagan turns to America’s court system and accuses American courts, including the Supreme Court, of perpetuating “racial discrimination and racially polarized voting.”

Finally, Justice Kagan’s attack gets up close and personal as she goes after her co-workers—the justices on the Supreme Court who had the audacity to disagree with her. She accuses them of (1) intentionally “undermining” Section 2 of the Voting Rights Act and its attempt to protect the right of American voters to “have equal access to the ballot box,” (2) intentionally construing the statutory text to discriminate against minority voters by upholding Arizona’s voting laws and, specifically, (3) to “weaken” and “damag[e]” minority voting rights in order to “enable[] voting discrimination.” She summarizes her caustic, personal attack on her co-workers, as follows:

“Today, the Court undermines Section 2 and the right it provides. . . .  the majority writes its own set of rules, limiting Section 2 from multiple directions. . . . Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. . . . the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. . . . the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.’”[11]

In the end, Justice Kagan’s dissent in Brnovich is not a “judicial opinion” at all—it is NOT grounded in the Constitution, the Voting Rights Act, Arizona’s voting laws, or the traditional judicial role of a Supreme Court justice. Instead, her putative “legal opinion” reads more like an academic ideological position paper firmly rooted in the socio-political principles and tenets of a Neo-Marxist ideology that has infiltrated virtually every aspect of American government, society and now, apparently, the highest court in the land— Critical Race Theory.^[12]

In her Brnovich dissent, Justice Kagan took on the role of a CRT “activist,” cloaked in the “robe” of a Supreme Court justice. She focuses, like a laser beam, on CRT’s fundamental principle that America and its justice system, including the Supreme Court of the United States, are and always have been systemically racist. From a judicial and legal perspective, however, in the words of William Shakespeare, it is nothing more than “a tale Told by an idiot, full of sound and fury, Signifying nothing.”^[13]

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[1] D.B. Petrie is an Arizona attorney and has practiced for 30+years in the Phoenix area . He also served as a co-host with Shane Krauser (host) on the constitutional-conservative radio program “Liberty Storm.”

[2] 594 U.S. ___, 141 S. Ct. 2321 (2021).

[3] The Fifteenth Amendment, ratified on February 3, 1870, guaranteed that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const., Amend. XV, §1.

[4] Generally, cases before the Ninth Circuit are assigned to and decided by a panel of three judges. On relatively rare occasions all eleven judges of Ninth Circuit may decide to hear a case or review the decision of its 3-judge panel; this is referred to as an en banc review. Here, the progressive faction of the Ninth Circuit apparently did not like the decision of the 3-judge panel and voted to review that decision en banc. 

[5] The Supreme Court’s ruling in Brnovich was a 6-3 decision. Justice Alito wrote the opinion for the majority of the Court, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Kagan wrote a dissenting opinion that was joined by Justices Breyer and Sotomayor.     

[6] The Court determined that the “key requirement” and goal of Section 2 is to ensure that political voting processes are “‘equally open’ to minority and non-minority [voters], alike.” Minority voters must be afforded the same opportunity as non-minority voters “to participate in the political process and to elect representatives of their choice.” The Court also analyzed the different factors to be considered in determining whether a voting law was “equally open.” Those factors include (1) the size and nature of the burden and/or disparate impact imposed on minority versus non-minority voters, (2) the law’s departure from or consistency with standard voting rules, (3) the voting opportunities provided by the State’s overall voting system, and (4) the nature and strength of the state interest served by the challenged law, such as prevention of fraud and voter intimidation.

[7] In his majority opinion, Justice Alito took Justice Kagan to task not so much for her disagreement with the majority’s ruling but, rather, for her focus on matters that were not relevant to the case or the Court’s judicial role in reviewing Brnovich.  

[8] For example, based on 2016-election statistics showing that 1% of minority voters versus 0.5% of non-minority voters, who voted on election day, failed to vote at the proper precinct, Justice Kagan stated that minority voters “were . . . 100% more likely—to have their ballots discarded than whites.” Justice Alito exposed Justice Kagan’s attempted misdirection stating that “[p]roperly understood, the statistics show only a small disparity [between minority and non-minority voters] that provides little support for concluding that Arizona’s political processes are not equally open [to minority voters].” (Emphasis added). Justice Kagan’s ruse seemingly proves the old saying that “there are three kinds of lies: lies, damned lies, and statistics.” (This quote is generally attributed to Benjamin Disraeli, Prime Minister of Great Britain from 1874 to 1880).

[9]  For much of her dissenting opinion, Justice Kagan discusses historical facts of early racism that go back to very genesis of America—the Declaration of Independence, the founding era, the Civil War—events that predate Arizona statehood by 50-100 years and the Arizona laws at issue by over 175 years. 

[10] Brnovich v. DNC, 141 S. Ct. at 2341 (majority opinion) (emphasis added).

[11] Brnovich v. DNC, 141 S. Ct. at 2351 (Kagan, J., dissent)(emphasis added). Her comments probably made for tense moments in the “break room” or around the “water cooler” at the offices of the Supreme Court.

[12] Critical Race Theory (“CRT”) is a thinly-veiled, race-based Marxist movement designed to divide the American people on the basis of race. Its roots go back to the critical theory ideology initially developed by Herbert Marcuse, a German-born Hegelian-Marxist ideologue, during the early- to mid-twentieth century at the Frankfurt School in Germany and, later, migrating to Columbia University, in New York City, in the mid-1930’s. In the 1970’s, a group of activist American law professors, who were dissatisfied with the progress of the civil rights movement, started a movement based on the critical theory ideology, called Critical Legal Theory (“CLS”), which then evolved into the CRT movement in the 1980s. CRT’s goals were from its inception to transform America, its legal system and other institutions, as we know them, based on the false narrative that America and its entire societal structure was founded on slavery and has been and continues to be controlled by systemic racism, white supremacy, and the oppression of colored people in America. As stated by one conservative legal commentator, Mark Levin, “CRT is an insidious and racist Marxist ideology spreading throughout our culture and society.” 

[13] Macbeth¸ Act V, Scene 5 (emphasis added).