J. Scott Applewhite/AP Photo
Analilia Mejia of the Center for Popular Democracy, center, joins other activists calling for ethics reform in the U.S. Supreme Court, at the Capitol in Washington, May 2, 2023.
The Voting Rights Act of 1965 (VRA) was probably the crown jewel of the civil rights movement. Millions of people organized, marched, were beaten, and even died to ensure that Black people had the right to vote. But it has been under attack virtually ever since. Conservatives and white supremacists have done their best to water down the VRA and make it difficult or impossible to enforce, either to get Republicans elected or simply to deny the ability for people of color to recognize their political power.
One of those conservatives was John Roberts. As a 26-year-old lawyer in Ronald Reagan’s Justice Department, Roberts wrote at least 25 memos and ghostwrote op-eds opposing the expansion of the VRA to include a test that voting rights laws could be illegal because of their discriminatory effects. In one memo, he wrote that “Section 2 [of the amendment to the VRA being proposed in Congress] would in essence establish a ‘right’ in racial and language minorities to electoral representation proportional to their population in the community. Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.”
Congress ultimately ignored Roberts’s advice in amending the VRA and included discriminatory effects. And last Thursday, John Roberts ignored John Roberts.
In a surprise to Supreme Court observers, Chief Justice Roberts authored a 5-4 decision (joined by Justices Kagan, Sotomayor, Jackson, and Kavanaugh) in Allen v. Milligan that leaves Section 2 of the VRA in place. Roberts’s opinion held that Alabama’s congressional map—which gives Black voters a majority in only one of the state’s seven congressional districts, despite Black residents making up nearly one-third of the state’s citizens—constitutes illegal vote dilution.
Alabama will likely now have to draw a second majority-Black district. It may also favorably impact lower-court decisions in other voting rights cases, potentially impacting districts in Louisiana, North Carolina, and South Carolina. The Cook Political Report’s David Wasserman believes the ruling could net Democrats two to four seats in the House, which given the tight margins could determine control of the chamber in 2024.
The flip-flop from Roberts, who has continued to chip away at voting rights on the Court, raises the question: Did the backlash to the Court’s extreme conservative rulings and official corruption have an impact? If judges are politicians in robes, at least some of them are sensitive to public opinion, particularly Roberts. Agitation in the civil rights era got the VRA passed; agitation against an out-of-control Court might have preserved it.
This agitation started early. The late civil rights icon Rep. John Lewis testified against Roberts’s nomination to the Supreme Court in 2005. “Had Judge Roberts’s narrow reading of the Voting Rights Act prevailed, fewer people of color would be serving in Congress and at both the state and local level today,” Lewis said. “We cannot afford to elevate an individual to such a powerful lifetime position whose record demonstrates such a strong desire to reverse the hard-won civil rights gains that so many of us sacrificed so much to achieve.”
It seems likely that Roberts feared that a decision gutting what’s left of the landmark VRA would go too far in damaging the already tattered legitimacy of the Court.
When asked by Ted Kennedy at the hearings whether Roberts had any problem upholding the VRA, Roberts replied, “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that.” Twenty-two Democrats joined 55 Republicans to confirm Roberts.
It turns out that Roberts essentially lied to the Senate about his views. Since joining the Court, Roberts has repeatedly voted to restrict civil rights enforcement. Most notably, Roberts authored SCOTUS’s decision ten years ago in Shelby County v. Holder, striking down the most important section of the VRA, Section 5, which required that states with a history of voter discrimination seek preclearance from the Justice Department for changes to their voting laws to be sure the changes weren’t discriminatory. The result has been a marked increase in voter suppression laws.
So why did Roberts uphold Section 2 in Allen v. Milligan, likely adding a second majority-Black congressional district in Alabama? In part, it was a status quo decision. It simply upheld existing Supreme Court precedent in Thornburg v. Gingles, instead of finding Section 2 unconstitutional, as Justices Thomas, Alito, Gorsuch, and Barrett advocated in their dissents. It mostly followed the factual conclusions of the district court that heard the case. The decision “is preserving something rather than paving new ground,” said Deuel Ross of the NAACP Legal Defense Fund.
It seems likely that Roberts feared that a decision gutting what’s left of the landmark VRA would go too far in damaging the already tattered legitimacy of the Court. After growing scandals over billionaire donors’ contributions to justices, and following recent precedent-breaking decisions taking away the rights of women to control their bodies, blocking environmental regulation as smoke fills the skies, and making most commonsense gun regulations unconstitutional, Roberts may have feared that gutting the VRA further would just be a bridge too far for the time being.
A recent Gallup poll found that 58 percent of Americans disapprove of the job the Supreme Court is doing, while only 40 percent approve. That is among the lowest approval ratings in the history of Gallup’s measurements of the Court.
Although Roberts recently stated that his “most difficult decision” was to build a fence around the Supreme Court to keep protesters far away, those protests are growing louder and larger. The Dobbs decision on abortion has helped Democrats win recent elections. Increasing numbers are calling for four justices to be added to the Court to unpack its extreme right-wing majority. The Judiciary Act of 2023 was just introduced in Congress with over 60 co-sponsors and would do just that. Organizations like Demand Justice are doing mass organizing in support. One editor of this publication, Ryan Cooper, has even called for ending the Supreme Court’s power to judicially review acts of Congress.
The other vote to save Section 2, Brett Kavanaugh, has signaled a preference for narrower rulings in some cases rather than the wholesale destruction of precedent. Similarly, Roberts has lobbied for less consequential rulings in some cases.
Roberts’s flip may be a minor repetition of the so-called “switch in time that saved nine.” During the Great Depression of the 1930s, a conservative Supreme Court consistently found most of Franklin Roosevelt’s New Deal legislation unconstitutional. FDR proposed adding justices to the Court. While he didn’t succeed, suddenly conservative Justice Owen Roberts flipped and voted with the four liberal justices to uphold a minimum-wage law. The ruling marked the end of the Lochner era, in which the Supreme Court struck down most regulation of business.
It would be naïve to expect that John Roberts would make such a dramatic change to the current extremist jurisprudence as Owen Roberts did. Indeed, he might have released the Allen v. Milligan decision this week to blunt upcoming anger when the Court likely overturns affirmative action and student debt relief in the coming weeks.
We’re not supposed to believe that the Court is susceptible to public opinion, that they are just “umpires calling balls and strikes,” as Roberts put it in his confirmation hearings. But justices have contoured their rulings to popular sentiment in the past. Political science studies have confirmed that public opinion is a “real [and] substantively important” factor in Supreme Court decisions.
One favorable decision shouldn’t blunt the growing mass movement to reform the Court. But at least in this case, the drumbeat of outrage at the Court’s corruption and other extremist decisions may have helped prevent a devastating judicial unraveling of what remains of the VRA. Popular movements matter.
