Cardozo Law School professor Kate Shaw, who had a lengthy job with the Obama administration, argues in major media that the state of Alabama is violating the Voting Rights Act and disadvantaging black voters, and subsequently that the U.S. Supreme Court should intervene and order the state to comply with a lower court ruling that she claims Alabama is "flouting."  (Apparently lost on Shaw is the right of appeal, and the hypocrisy of the Biden administration's own flouting of Supreme Court judgments it doesn't like on issues such as discriminatory affirmative action.)

She makes her argument through a fallacy of assertion, merely telling readers her opinions.  She cites a number of cases but doesn't explain what they mean or why they may or may not be important, nor does she provide any details as to how Alabama may or may not be violating the act.  We have no idea what the state's legal rights are, nor does she bother to bring up the fascinating issue of federalism and state sovereignty.  In her words:

Alabama's appeal confronts the Supreme Court with a profound test. The case may appear to involve a set of technical questions about one state's legislative map. But it is more fundamentally about whether the Supreme Court should still be viewed as in any sense standing outside politics. Facing a crisis in public confidence, the court should take the opportunity to regain some of its rapidly dwindling legitimacy.

Apparently, the professor is arguing for a Supreme Court that acts as a political committee.  Shaw labels the Court as out of public favor, even "illegitimate," but it is only because the Court has ruled recently in ways that do not comport with her ideology.  Now she thinks the Court should redeem itself quickly by ruling in ways she favors. The rule of law is an ideal that depends on the rule of politics — hers.

Her interpretation of judicial review is also curious when she refers to Allen v. Milligan: "it did what a court should do — reviewed and ultimately affirmed the lower court's careful legal and factual findings, noted and adhered to its own many precedents enforcing the Voting Rights Act and simply applied the law" (italics mine).

But since when is affirmation what an appellate court  "should do" as an act of judicial review?  She greatly misleads readers with her selective doctrine, which says that courts act properly only when they adhere to her favored outcome.  This is a major failing of professional self-discipline by a law professor, and one can only imagine the poor effect it may have on law students.

She also misleads readers by asserting that the U.S. Supreme Court can merely impose itself on states without a legal challenge in subsequent litigation.  This underscores the schizophrenia of the left: it hates the Court when it rules against them, and claims that it is "illegitimate," but then turns to the same Court as a super-Legislature in order to intervene in selective matters.  Law is economics, and economics involves tradeoffs.

But Shaw makes a more fundamental mistake in how she misleads readers: she engages in her own form of racial discrimination and creates the false impression that blacks can advance only through public officials who are also black.  In her world of ideology and wishful thinking, blacks vote only for blacks.  She must not have noticed that black support for the Biden administration continues to fall, while support for conservatives grows.

As Hoover Institute economist Thomas Sowell shows in Wealth, Power and Politics, blacks do worse under progressive policy.  Jason Reilly shows in False Black Power how blacks have rarely advanced through the actions of their own minority leaders: gaps in employment, personal income, homeownership, academic attainment, and other categories have continued, and in some cases have increased dramatically, despite racial political advocacy.

Professor Shaw is not interested in black citizens; she works for politicians.  Her criticism of Alabama gerrymandering is only an inconvenience for the designs of racial agitators.  Her goals have nothing to do with law, equity, or voting, but with getting certain politicians more power.

Shaw's position is also profoundly anti-American. It may seem concerned with the themes Americans embrace concerning fairness and opportunity, but her position in no way reflects the higher principles of unity.  This was articulated as a vision, rather than division, by former justice J. Harvey Wilkinson III:

Law has two historic purposes: the protection of liberty and the preservation of order.  It is time to add to those a third: the maintenance of one America.  It is a plea for a legal framework within which the dynamics of diversity can be put to their most productive use.  Law can help us acknowledge and appreciate all we have in common.  Or it can drive us irretrievably apart.

Professor Shaw is a subtle divider engaging in and perpetuating political segregation — the kind that assumes that black and white cannot cross racial lines on their own, or maintain their own preferences.  The law professor undermines public understanding and confidence by organizing an argument under the guise of law in order to serve the interests of politics.  They are not the same.

Matthew G. Andersson is the author of the upcoming book Legally Blind.  A former CEO, he has been featured in the Wall Street Journal, the Financial Times, the New York Times, the Chronicle of Higher Education, and the National Academy of Sciences in law and economics.  He has testified before the U.S. Senate and is a graduate of the University of Chicago.  He studied with White House national security advisor W.W. Rostow at the LBJ School of Public Affairs.

Image: stevepb via Pixabay, Pixabay license.