[Is this the end of the Voting Rights Act?]
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JOHN ROBERTS’S LONG GAME  
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Linda Greenhouse
September 19, 2022
The Atlantic
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_ Is this the end of the Voting Rights Act? _

, Photo-illustration by Mark Harris. Sources: Alabama Secretary of
State’s Election Division; Photka / iStock.

 

The supreme court delivered appalling decisions in June—on
abortion, guns, and environmental regulation—but the conservative
supermajority is poised to strike an even greater blow against
American democracy. The justices now have the Voting Rights Act of
1965 in their sights. On October 4, the second day of the new term,
they will hear Alabama’s challenge to a federal district court’s
finding that the state has to create a new majority-Black
congressional district. This is no ordinary case of statutory
interpretation. At stake is a crowning achievement of the civil-rights
era, and the meaning and measure of racial equality in the hands of a
Supreme Court reshaped by Donald Trump.

Back in February, in a 5–4 vote, the Court’s conservative majority
temporarily blocked the district court’s order; the majority
didn’t even deign to issue an opinion explaining its reasoning. The
justices’ audacious move freed Alabama to hold November’s
congressional elections in districts that the lower court had declared
invalid. This went too far even for one of the Voting Rights Act’s
best-known critics, Chief Justice John Roberts, who dissented. To
resurrect a pungent phrase, his colleagues out-segged him. But it
would be a mistake to read his dissent as a sign that he has abandoned
a project that has obsessed him since his days as a young lawyer
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the Reagan Justice Department.

The most likely explanation for his dissent was that he flinched at
the optics: Alabama’s request for a stay had arrived on the
Court’s “shadow docket.”
[[link removed]] Every
court maintains an emergency docket to handle matters that can’t
wait for a full hearing. But during the Trump years, the Supreme Court
exploited this device to hand victories to the president without a
full briefing, public argument, or even advance notice.

Although Alabama is 27 percent Black, only one of its seven
congressional districts—the one that includes Birmingham—has a
Black majority, despite large Black populations concentrated in Mobile
and in the “Black Belt” counties that stretch across the state. It
may have struck the chief justice that using the shadow docket to
preserve this status quo in defiance of the lower court’s decision
was an unappealing step, and an unnecessary one at that.

When the justices decide the case, _Merrill v. Milligan_, this term,
they will be free not only to overturn the lower court’s decision,
but to rewrite the rules governing how the Voting Rights Act applies
to similar cases anywhere in the country. Roberts conceded in his
dissent
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the district court had correctly followed precedent. He also made it
clear that, in his view, the precedent is overdue for revision. As we
saw in June, overturning precedent is no obstacle to a majority ready
and willing to use its power to get what it wants.

The justices have framed the question for this round as “whether the
State of Alabama’s 2021 redistricting plan for its seven seats in
the United States House of Representatives violated Section 2 of the
Voting Rights Act.” But the real question, the perilous one
underlying that seemingly benign formulation, is this: Is Section 2
itself constitutional? And in the dangerous space forced open by that
question, the young John Roberts and the chief justice of the United
States meet.

Section 2 of the Voting Rights Act prohibits any electoral practice
that “results in a denial or abridgment of the right of any citizen
of the United States to vote on account of race or color.” A
violation has occurred if members of a racial or language minority
group “have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of
their choice.” Section 2 is about the allocation of political power.
It takes aim at “vote dilution,” defined as dispersing a cohesive
minority group among several districts or lumping members of the group
into one district. “Cracking” and “packing” seem to be what
was happening in Alabama.

A 1986 decision, _Thornburg v. Gingles_
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laid out a road map for how to prove such a case, requiring plaintiffs
to demonstrate that the minority group was “sufficiently large and
geographically compact to constitute a majority.” That test is
central to the Alabama case. Obviously, applying that test requires an
awareness of race. How can line-drawers, or courts, know whether a
minority group’s vote is being diluted without knowing where the
members of the group live, and how many of them there are?

Alabama is saying, essentially, that any effort to eradicate racial
discrimination is itself racial discrimination.

And yet Alabama argued that, by taking race into account at all, the
district court indulged in “the noxious idea that redistricting
begins and ends with racial considerations.” The creation of a new
majority-Black district, the state claimed, was therefore nothing more
than a “racial gerrymander,” a phrase that Alabama’s lawyers
used multiple times in the application for a stay. Unless the justices
blocked the order, the state warned, “Alabamians will suffer the
constitutional harm of being assigned to racially segregated
districts, irreconcilable with the Fourteenth Amendment, the Fifteenth
Amendment, and the VRA as initially conceived.” Section 2 is
supposed to be a “shield against racial discrimination,” the
state’s formal brief reads. “It is not a sword to perpetuate
it.”

These sentences merit parsing with care. The words invite a dramatic
conclusion: that the heart of the Voting Rights Act, as interpreted by
the Supreme Court a generation ago and as applied many times since, is
unconstitutional.

What alabama is saying, essentially, is that any effort to eradicate
racial discrimination is itself racial discrimination. But how can
that be? How can we know when a Voting Rights Act remedy is called for
unless we can take account of race? Alabama is trying to turn the
statute inside out and upside down. The district court, in rejecting
the state’s argument, observed that it was “obvious” that its
logic would “preclude any plaintiff from ever stating a Section Two
claim.”

That conundrum will be obvious to the Supreme Court as well. But for
the conservative justices, the problem is not how to satisfy
the _Gingles_ test but rather the test itself. Roberts made that
point in his dissent from the stay. “While the District Court cannot
be faulted for its application of _Gingles_,” he wrote, “it is
fair to say that _Gingles_ and its progeny have engendered
considerable disagreement and uncertainty.” He then quoted Justice
Anthony Kennedy, who warned in a 1994 vote-dilution case that
“placing undue emphasis upon proportionality risks defeating the
goals underlying the Voting Rights Act.”

_Proportionality_ is a loaded word. Section 2 explicitly disclaims
the goal of proportional representation: “Nothing in this section
establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population.” But the
justices who decided _Thornburg v. Gingles _remained worried about
the specter of proportionality. While nominally unanimous, they
produced four separate opinions. They were clearly grappling with
whether the decision would hardwire a proportionality standard—in
effect, a quota—into a statute that purported to reject it.

That concern has never fully been put to rest. The statute remains
unfinished business, like the fight over affirmative action, which the
conservatives on the Court have been trying to finish off for decades.
It’s not by chance that voting rights and race-conscious university
admissions have both ended up on the docket this term. Why wouldn’t
they, when their final unraveling is within reach?

The same law firm—Consovoy McCarthy—is representing Alabama and
the plaintiffs in two cases the Court will soon hear challenging any
consideration of race in admission to Harvard and the University of
North Carolina. The firm’s founding partner William Consovoy
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a former clerk to Justice Clarence Thomas, is one of the right
wing’s go-to lawyers; he defended President Donald Trump in his
efforts to shield various records from disclosure in 2019. The
firm’s two lawyers on the Alabama brief represent the rising
generation: One clerked for Thomas and the other for Roberts.

Consovoy’s case against Harvard failed in two lower federal courts,
but those defeats were a warm-up act. Now comes the real show. The
first line of his petition to the Court is breathtaking for its brash
confidence—and its cheekiness: “It is a sordid business, this
divvying us up by race.” Instantly recognizable, this is a quotation
from one of Roberts’s earliest Supreme Court opinions, in which he
dissented from the majority’s finding of vote dilution in Texas, in
a Section 2 case.

Although the court decided _Gingles_ 19 years before Roberts became
chief justice, the case was no abstraction to him. Early in his
career, he was deeply involved in a monumental political battle that
ultimately led to the decision.

In 1980, the Supreme Court decided _City of Mobile v. Bolden_
[[link removed]]. At issue was the validity
of a common form of municipal government in the South, a commission
consisting of three members who were elected at large rather than from
individual districts. At-large systems all but guaranteed that even
cities with sizable Black populations would have no Black members in
elected positions. And indeed, no Black candidate had ever been
elected to the city government in Mobile, Alabama, where racial
polarization ran so deep that even a white candidate viewed as
sympathetic to the interests of the Black community was doomed to
lose.

The plaintiffs in the class-action lawsuit, representing all Black
citizens of Mobile, claimed that the at-large system violated Section
2 and the equal-protection guarantee of the Fourteenth Amendment. In a
6–3 decision, the Supreme Court made short work of both claims.
Section 2, Justice Potter Stewart wrote for the majority, was no more
than a statutory mirror of the Fifteenth Amendment, which bars racial
discrimination in voting and which the Court interpreted as applying
only to intentional discrimination. The Fifteenth Amendment “does
not entail the right to have Negro candidates elected,” Stewart
observed gratuitously. The Fourteenth Amendment was also a lost cause;
four years earlier, in _Washington v. Davis_, the Court had ruled for
the first time that proof of intentional discrimination was necessary
to establish a violation of the equal-protection clause. The fact that
a policy disproportionately harmed or disempowered one racial group,
in other words, was not enough.

After this devastating ruling, civil-rights activists turned to
Congress. The Supreme Court had administered something close to a
death blow to Section 2, and only an amendment making clear that the
law covered discriminatory outcomes as well as discriminatory purpose
could save it. The Democratic-controlled House of Representatives
responded quickly and produced such a bill. John Roberts, 26 years old
and having recently completed a clerkship for then-Justice William
Rehnquist, was working as a special assistant to President Ronald
Reagan’s attorney general. His portfolio included voting rights, and
in a series of memos that came to light soon after his 2005 Supreme
Court nomination, Roberts argued vigorously against the passage of the
proposed amendment.

In one memo
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he wrote: “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.” The
proposed “effects test,” he wrote, “would establish essentially
a quota system for electoral politics” that was “inconsistent with
this Nation’s history of popular sovereignty.”

Ultimately, the Senate passed the bill and Reagan signed it. But the
fight wasn’t over. To the contrary—first under Chief Justice
Warren Burger, then under Rehnquist, and finally under Roberts
himself, the Supreme Court went assiduously about disengaging the
federal government from the civil-rights revolution. Busing for
integration ended at the school-district line. White contractors were
deemed the victims of city policies aimed at guaranteeing
minority-owned businesses a share of the work. The Court weakened the
part of the Fourteenth Amendment that gives Congress the power to
enforce its guarantees.

No one in a position of power has done more for this cause than John
Roberts. One of his first major opinions, the _Parents
Involved_ school-integration case in 2007, declared his determination
to get government out of the business of counting people by race.
(Roberts actually borrowed the most famous line of that
opinion—“The way to stop discrimination on the basis of race is to
stop discriminating on the basis of race”—from another federal
judge, without attribution.)

In _Shelby County v. Holder_, Roberts’s majority opinion
essentially killed Section 5 of the Voting Rights Act, the highly
successful “preclearance” rule under which jurisdictions with a
history of racial discrimination in voting had to get permission from
the Justice Department or a federal court before making any change in
voting procedures. The South had done so well in correcting the sins
of its past, Roberts wrote
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law as applied could no longer be justified.

The impact of the _Shelby County_ decision
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stunning. Within hours, Greg Abbott, then the attorney general of
Texas and now the state’s governor, announced that a stringent
voter-ID law that had been blocked under Section 5 the previous summer
would go into effect “immediately.” That was just the beginning.
States across the South and the Southwest have been quick to exploit
their new freedom from the federal scrutiny that once would have
deterred changes in voting hours, ID requirements, and other seemingly
neutral moves with disproportionate effects on minority voters.

The end of Section 2 could be even more damaging because, in many
respects, it is the more powerful provision. It applies nationwide,
and does not require, as Section 5 did, proof that the challenged
policy has made things worse for minority voters, only that such
voters have been deprived of an opportunity that should have been
theirs. The prospect that Section 2 may now follow Section 5 into
oblivion feels at once scarcely believable and sadly inevitable. If
this comes to pass, it will be almost impossible to prove that a state
has gerrymandered its electoral districts to disempower minority
voters, or for a court to order that its map be redrawn.

Look again at that curious phrase from Alabama’s lawyers, the one
describing the district-court order as “irreconcilable with the
Fourteenth Amendment, the Fifteenth Amendment, and the VRA as
initially conceived.” What is “initially conceived” supposed to
mean? It can only be a reference to that 1981 fight over the meaning
of Section 2, when the young John Roberts argued that it should not be
“too easy to prove” that a state had violated the voting rights of
its citizens. The Alabama lawyers are speaking directly to Chief
Justice Roberts, telling him that the law has been constitutionally
problematic for decades, and that now, in this very case, in this very
year, he finally has the chance to make it right.

_This article appears in the October 2022
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the Atlantic with the headline “John Roberts’s Long Game.”_

_LINDA GREENHOUSE
[[link removed]] teaches at
Yale Law School. She is the author, most recently, of Justice on the
Brink: A Requiem for the Supreme Court
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her 2021 book about the coming to power of the Court’s conservative
supermajority._

_THE ATLANTIC_

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* Voting Rights Act
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* Supreme Court
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* U.S. Constitution
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* Fourteenth Amendment
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* Fifteenth Amendment
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* Chief Justice John Roberts
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* Racism
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