It would be difficult to find a single judicial writing in which the Chief Justice John Roberts endorses an outcome that bolsters black voting power, not to mention one that treats the Voting Rights Act of 1965 with the reverence the law deserves. He was, after all, the author of Shelby County vs. Holder, that nadir of constitutional law that has rendered toothless a key provision of the law, giving states carte blanche to make it harder for people to vote without federal oversight. In the years that followed, Roberts reported that he is not done undermining the right to vote: last summer, he quietly joined his five other colleagues from the conservative majority on the Supreme Court to more or less complete the work he started in 2013 , leaving the law for which John Lewis and many others were willing to lay down their own lives on life support.
This story, bleak as it is, could get even darker as the Supreme Court enters the redistricting wars, this time with an increasingly weak voting rights law. In a highly controversial ordered Released Monday, the Supreme Court agreed to hear a pair of cases challenging how Alabama, following the census, redrew its map of Congress in a way that diluted black voting power from the Alabam. But that’s not all: all of a sudden, and without any reasoning of their own, the arch-conservative majority at the Court blocked a sweeping lower court judgment requiring the state of Alabama to redraw its congressional map to include an additional black-majority district. With that judgment now on hold, the Supreme Court action should be a boon to Republicans seeking to regain control of Congress and effectively put the Voting Rights Act on its deathbed.
A telltale sign that Monday’s order was sweeping was one judge in particular who refused to approve it: Roberts. The Chief Justice is not one to be the only Tory dissenter, let alone in disputes over voting rights. But this time, those judges to his right…Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett— put him in the minority and left him isolatedas they have done in a number of cases since donald trump remade the Supreme Court in its image.
Challengers in these redistricting cases argued that black voters, who make up 27% of Alabama’s population, were “packed up“in just one of the seven majority black districts in the state’s congressional delegation – or otherwise ‘split’ or dispersed, in other districts where their numbers are not large enough to send Congress a representative of their choice. Under long-standing Supreme Court precedent, this type of racial gerrymandering is prohibited even by the now curtailed Voting Rights Act.
Does such Republican chicanery seem wrong, undemocratic, illegal, or all three? A panel of three federal judges in Alabama certainly thought so. And it wasn’t just any panel, but one that included two Trump appointees. Together, the three judges considered a mountain of evidence, heard seven days of testimony and thoughtfully ruled, Reviews over 200 pages that Alabama lawmakers violated Division 2 of the Suffrage Act, the weakened but still valid bulwark of the law against the misdeeds of election law. Because violations of the law need a remedy, judges also ordered the state to reject its racist map and come up with a new one that included at least two majority black districts — or alternatively one district to black majority and another where “Black voters otherwise have the opportunity to elect a representative of their choice.” The judges’ order also prohibited the state from holding elections unless and until this re-draw takes place.
In the normal course of things, with the election still a long way off and no interim changes in the law, the Supreme Court should have stayed out of this dispute and not blocked the justices’ well-reasoned plan. But very little is normal with a Supreme Court where even Roberts feels compelled to cast a dissenting vote. “I respectfully disagree with the stays granted in these cases because, in my opinion, the District Court correctly applied the existing law in a thorough opinion with no apparent errors for our correction,” Roberts wrote in a brief dissenting opinion. According to him, the lower court correctly understood the law as it stands today – and black people in Alabam, depending on their numbers, should be entitled to Continued greater political representation than their own legislators have granted them in the current round of redistricting.
In the context of Roberts’ lifelong political project to undermine black voting rights, and the Voting Rights Act in particular, is as stunning a view as I have ever seen from the leader. Yet it is a small comfort. When you dig a little deeper, old Roberts is still there, lurking between the lines. In a paragraph filled with legalese and a series of quotes from older cases and suffrage literature, Roberts noted that precedents supporting the right of black voters to political representation “have engendered disagreement and considerable uncertainty about the nature and contours” of exactly what counts as vote dilution or the assertion that black political power is being undermined. And so Roberts, although at odds with his fellow conservatives over who should control the 2022 election, is not it disagree that the “governing standard” for these types of cases, which are largely covered by voting rights law, may need to change. Or be shaken or canceled entirely. Roberts, in this regard, may be just as keen as the others ridersand woman, to the Supreme Court to roll back progress.
Legally speaking, that won’t happen until the Court’s next term, which begins in October. This is when the Supreme Court should hear Merrill v. Milligan and Merrill versus Caster, as the Alabama cases are known, which since Monday are now officially on the docket. In practice, however, when it comes to this year’s elections, the damage has already been done. In a livid but decidedly sharp dissenting opinionJustice Elena Kagan, joined by judges Stephane Breyer and Sonia Sotomayor, chastised the state of Alabama for pushing for “an entirely new view of what the law requires” in racial gerrymandering cases – and lambasted majority reactionaries for thoughtlessly acceding to the demand for the state without benefiting precisely from the things on which the judges of Alabama relied such as expertise, evidence and a hearing.
“The substantive issues deserve careful thought,” Kagan wrote, dissecting all the ways his colleagues twisted precedent and procedure to get their way. Echoing her own dissent from last summer, when Roberts and company struck another blow at the Voting Rights Act, she once again denounced their excess while defending what remains of the law. “This decision does a disservice to our own appeals processes, which serve to both constrain and legitimize the Court’s authority,” Kagan wrote. “This does a disservice to the District Court, which has meticulously applied this Court’s long-standing precedent on voting rights.” Most importantly, it does a disservice to black people in Alabam who, under this precedent, saw their electoral power diminished – in violation of a law this Court once knew to buttress all of American democracy.
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