Opposing voting rights has been John Roberts’s signature issue since he was a functionary in Reagan’s DOJ. His abysmal record as Chief Justice speaks for itself. So imagine how naked your racist vote suppression has to be for this to happen:
The Supreme Court’s 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama’s congressional map violates the Voting Rights Act’s ban on racial vote dilution, sends two clear messages. First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter). Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans. Roberts’ opinion for the court has a broader meaning that reaches far beyond this case: Red states cannot pressure the court into rewriting the VRA for no reason other than their shameless, brazen desire to elect more white Republicans.
Milligan revolves around Alabama’s current congressional map, which GOP legislators drew after the 2020 census. Black residents make up nearly one-third of the state’s population, but lawmakers gave them a majority in just one of the state’s seven congressional districts. They did so by drawing a single, snaking district that captured most Black communities, then dispersing the remainder of Black voters throughout majority-white districts. The obvious purpose was to ensure that Black Alabamians could only have a real opportunity to elect one representative of their choice.
This tactic is plainly illegal under Section 2 of the VRA, which prohibits voting laws (including redistricting plans) that have a racially discriminatory effect, meaning a disparate impact on Black voters. In January 2022, a three-judge district court struck down the map, finding that it illegally diluted the votes of Black Alabamians. But the Supreme Court swiftly halted that decision on the shadow docket. Its order split 5–4 (with Kavanaugh in that majority), and though Roberts dissented, he objected only to the majority’s use of the shadow docket to overhaul precedent, and was open to narrowing Section 2 in the future. After SCOTUS’ intervention, it seemed inevitable that the conservative supermajority would use Milligan to eviscerate what remains of the Voting Rights Act.
But it didn’t! In fact, it did the opposite, vigorously reaffirming the ongoing importance and validity of this portion of the VRA in the face of ceaseless GOP attacks. Roberts’ opinion for the court on Thursday traced the history of racist voter suppression after the Civil War, leading up to the initial passage of the VRA in 1965. He explained how, in 1980, the Supreme Court held that the law barred only discriminatory intent, not effect—a decision that “produced an avalanche of criticism, both in the media and within the civil rights community.” Roberts wrote that some lawmakers were wary that an “effects test” (which measured impact rather than intent) would require a “quota system” or “racial proportionality” in districting, raising equal protection concerns. And so Congress settled on a bipartisan, “hard-fought compromise,” which amended Section 2 to require that the electoral process be “equally open to participation” by all racial groups.
What’s shocking about Roberts’ history lesson is that, at the time, he was on the front lines of the fight against expanding the VRA to include an effects test. As a lawyer at Ronald Reagan’s Department of Justice, he wrote about 25 memos in opposition of the new test and drafted op-eds on the topic for administration officials. Indeed, it is quite likely that Roberts actually ghostwrote one op-ed that he quoted in Milligan to illustrate the Justice Department’s hostility. Once on the Supreme Court, of course, Roberts consistently voted to narrow the VRA in line with his earlier views. So Milligan represents a total about-face: For the first time ever, the chief justice has embraced the law as a legitimate means of safeguarding Black Americans’ equal participation in the electoral process.
What happened? We will debate that question for decades, but one answer leaps off the page: Alabama pushed too far, too fast, too transparently. The state wanted the court to either gut the VRA under the guise of “interpretation” or simply strike it down as unconstitutional. Roberts turned down both requests, and Kavanaugh went along with him. Notably, his analysis of Alabama’s map itself is extremely brief, as if to illustrate that this case is not a close call. He explained that the court uses the “Gingles test” to identify a violation of Section 2. Under that test, a minority group must be large and compact enough to constitute a majority in one “reasonably configured” district; the group must be “politically cohesive,” meaning its members generally share the same political preferences; and it must be able to demonstrate that white voters can consistently block its “preferred candidate.” If all these conditions are met, the group must then show that elections are not “equally open” to racial minorities under a “totality of the circumstances.”
There is obviously a strategic element at play — Roberts sometimes prefers not to be made to look too ridiculous, and in this case he was able to get Kavanaugh to go along. But a Supreme Court that is at least a little concerned with preserving the illusion of integrity is preferable to a full-on Alito “do what thou wilt shall be the whole of the law” Court.
Speaking of which, we also have the rare pleasure of Bloody Sam’s series of blogs engaging in a war on basic logical principles being in dissent:
“The framers of the Voting Rights Act only required representative racial identification if states could do so by completely ignoring race.” The “Martin Luther King’s entire career consisted of one speech which consisted of one sentence” school of statutory interpretation.
Not to put a damper on this, but (thanks to Roberts) states have a lot of ways of using inertia to nullify voting rights opinions, so we’ll see if the Court actually requires the new maps by 2024. But this outcome is certainly better than the alternative.
…worth noting that Kavanaugh’s collaboration with the abuse of the shadow docket may have altered the course of the 2022 midterms:
If you assume that additional majority-minority districts in Alabama, Georgia, Louisiana, & 1–2 other states would’ve been safe Democratic seats, then today’s #SCOTUS ruling strongly suggests that the Court’s 2022 shadow docket stays wrongly gave Republicans control of the House.— Steve Vladeck (@steve_vladeck) June 8, 2023