“Taken at face value, these statements appear to create an open-and-shut case that there must be a way to privately enforce Section 2,” Stras wrote. “If five Justices assume it, then it must be true. The problem, however, is that these were just background assumptions—mere dicta at most.” Generally speaking, the law is always whatever five justices say it is. But the Supreme Court is also fortunate that it can rely on a panel from the Eighth Circuit to correct its apparent errors and oversights.
One member of the panel recognized how the federal appellate process is actually supposed to work. Chief Judge Lavenski Smith, a George W. Bush appointee, stated the obvious in dissent: Stras and Judge Raymond Gruender, another George W. Bush appointee, are ignoring precedent in favor of predicting how the court might rule in the future. “While that private right has been called into question by two Supreme Court justices, the Supreme Court has yet to overrule itself on that precise issue,” he wrote.
In fairness to the panel, it does have some reason to turn to prophecy in this case. Certain members of the Supreme Court have been signaling for conservative judges in lower courts to make this ruling for years. In the 2020 case Brnovich v. Democratic National Committee, the court raised new barriers to Section 2 claims. Justice Neil Gorsuch, in a concurring opinion joined by Justice Clarence Thomas, suggested it should go even further.