The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Elena's Greatest Hits

Her Brnovich dissent reads like a Jackie Mason skit.


I'll let others decipher Section 2 of the Voting Rights Act. The entire enterprise, which turns on parsing legislative history from 1982, boggles my mind. Try, if you can, to reconcile the Brnovich majority and dissent with Bostock's fixation on text, the whole text, and nothing but the text.

Instead, I'll highlight the most effective barbs from Justice Kagan's Brnovich dissent. She was in rare form. Her parentheticals were brutal. Some of her zingers reminded me of a Jackie Mason skit.

Here are some of Elena's greatest hits:

That showing is hardly insubstantial; and as a result, Section 2 vote denial suits do not often succeed (even with lower courts applying the law as written, not the majority's new, concocted version).

The majority's opinion mostly inhabits a law-free zone.

(Every once in a while, when its lawmaking threatens to leap off the page, it thinks to sprinkle in a few random statutory words.)

It only grudgingly accepts—and then apparently forgets— that the provision applies to facially neutral laws with discriminatory consequences

The majority instead founds its decision on a list of mostly made-up factors, at odds with Section 2 itself. To excuse this unusual free-form exercise  . . . 

In a single sentence, the majority huffs that "nobody disputes" various of these "points of law." Ante, at 21. Excellent! I only wish the majority would take them to heart, both individually and in combination.

And it criticizes this dissent for understanding the statute (but how could anyone understand it differently?) as focusing on the racially "disparate impact" of neutral election rules on the opportunity to vote

The list—not a test, the majority hastens to assure us, with delusions of modesty—stacks the deck against minority citizens' voting rights.

In countenancing such an election system, the majority departs from Congress's vision, set down in text, of ensuring equal voting opportunity. It chooses equality-lite.

Except in a pair of foot-notes responding to this dissent, the term "Native American" appears once (count it, once) in the majority's five-page discussion of Arizona's ballot-collection ban. 

In the majority's alternate world, the collection ban is just a "usual burden[] of voting" for every-one.

Absolutely vicious. I have to imagine that even Justice Alito had to chuckle at some of these jabs.