The US supreme court ruling delivered on Thursday by John Roberts marks a departure for the chief justice from his 40-year battle to whittle down racial equality protections enshrined in the crowning glory of the civil rights movement.
Roberts wrote the Allen v Milligan opinion himself, forging an unconventional 5-4 majority with the support of the three liberal-leaning justices plus the partial backing of the conservative Brett Kavanaugh. The chief justice’s decision to cling closely to precedent and avoid a sweeping reframing of voting rights law took supreme court observers by surprise.
“Speechless!” was how Robyn Sanders, an elections lawyer with the Brennan Center for Justice, described her reaction. “An amazing victory for voting rights, Black voters, and the Voting Rights Act”.
Shock and relief came in direct proportion to the hostility that Roberts has previously shown towards the use of federal laws to ensure proportionate electoral representation for Black Americans. The chief justice has demonstrated a consistent desire to dilute or destroy elements of the landmark Voting Rights Act of 1965, and in so doing has opened the floodgates to a torrent of voter suppression measures from Republican states that continues today.
This time, though, Roberts reined himself in.
In his Milligan opinion, the chief justice pledged himself to providing “a faithful application of our precedents and a fair reading of the record”. He upheld a lower court ruling that had objected to the electoral maps drawn up by Alabama’s Republican-dominated legislature.
Lawmakers had awarded Black voters the majority in only one of seven congressional districts. Yet African Americans make up more than a quarter of Alabama’s voting-age population.
In rebuffing the audacious attempt by Alabama Republicans to dilute the electoral power of the state’s Black citizens, Roberts held tight to supreme court precedent. That was another source of relief to progressives and voting rights advocates who had feared the worst following the court’s bombshell evisceration of the right to an abortion last June in the face of 50 years of settled law.
He drew in particular from the 1982 decision Thornburg v Gingles, which outlawed barriers to Black voters participating equally in the democratic process and electing “candidates of their choice”.
Justin Levitt, a law professor at Loyola Marymount University in Los Angeles, said there was a double surprise to Roberts’s opinion: not only had he stuck to precedent, he also managed to get other justices on board to drive his decision through. “It’s a particular surprise that he was able to get a majority for his view,” Levitt said.
A key to understanding Roberts’s intentions is that he plays the long game. He likes to present himself as a bridge-builder who represents the moderate center of American jurisprudence. He is also highly sensitive to the slump in public trust in the supreme court that has followed embarrassing revelations about Clarence Thomas’s luxury holidays paid for by a Texan billionaire.
In that context, Roberts has shown himself willing to bide his time before making some of his more extreme interventions.
The pattern is seen perhaps most clearly with voting rights, where Roberts has since the early 1980s expressed profound doubts about the role of federal law in forwarding equal representation for Black citizens. Exactly 10 years ago, he delivered Shelby County v Holder, which punched a gaping hole in the Voting Rights Act, Lyndon Johnson’s landmark legislation that was perhaps the pinnacle of the civil rights movement.
In his new book on the new ultra-right domination of the supreme court, The Supermajority, Michael Waldman of the Brennan Center describes the Voting Rights Act as “perhaps the nation’s most effective civil rights law”. He notes that in its first five years, the law helped as many Black people register to vote in southern states as in the whole of the previous century.
Such accomplishments appear not to have impressed Roberts, who used Shelby County to destroy a key pillar of the act. He took a sledgehammer to the so-called “preclearance” provision contained in sections 4 and 5.
Preclearance required a subset of identified states and local governments with a history of racial discrimination in voting, mainly in the deep south, to seek federal approval in advance for any changes to electoral procedures. For almost half a century, the order was successful in nipping in the bud electoral trickery that had for decades restricted Black voting and upheld white domination in the south.
The instant Roberts destroyed the practice, Republican states rushed to revive their old ways on a massive scale. Within hours of his decision being delivered, Texas enacted a new voter identification law that would have effectively disenfranchised more than 600,000 mainly Black and Latino voters had a federal judge not stepped in to halt it.
Other states across the south and south-west quickly followed suit.
“Shelby County was one of the most consequential supreme court decisions in history, because it opened the door to so much legislation by states restricting aspects of voting and making it harder for people to get to the ballot box,” said Tara Grove, a law professor at the University of Texas.
Roberts attempted to justify his decision by arguing that preclearance was no longer needed. “Our country has changed,” he wrote, adding that Black voters now turned out in greater numbers than white voters in five of the six states initially covered by the provision.
That rationale inspired a legendary dissent – the one that earned Ruth Bader Ginsburg the tag “Notorious RBG” (after the rapper Notorious BIG). She said that throwing out preclearance because it had worked was like “throwing away your umbrella in a rainstorm because you are not getting wet”.
Shelby County left the Voting Rights Act still standing but in weakened form, like a house with a roof but with several walls missing. What kept propping up the legislation was section 2, which allowed lawsuits to be filed anywhere in the country against racially discriminatory electoral practices.
It was that aspect of the act that Roberts left untouched in Thursday’s decision, to the huge relief of voting rights advocates. They were all the more amazed because Roberts has been open in his distrust of section 2 since 1981 when, as a 26-year-old special assistant in Ronald Reagan’s justice department he lobbied frenetically to narrow the limits of the provision.
He composed no fewer than 25 memos calling for section 2’s reach to be limited only to those cases where an actual racist intent could be proven – a very difficult legal standard to meet. Under the Voting Rights Act, Congress had also allowed legal challenges to be brought in instances where Black people were hampered from casting ballots as the result of an electoral practice, irrespective of motive.
Roberts wanted to rein that “results test” back, arguing that such “racial balancing” was unconstitutional even if it was designed to ensure as basic a right as voting. “Violations of section 2 should not be made too easy to prove,” he wrote.
By openly arguing that it should not be “too easy” to bring lawsuits designed to ensure that Black citizens can vote, Roberts earned the visceral suspicion of civil rights leaders. John Lewis was one of many who opposed Roberts’s 2005 nomination to the supreme court.
He 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.” Lewis knew whereof he spoke – he carried the scars of the beating police gave him in Selma, Alabama, in March 1965 that caused such public revulsion it propelled passage of the Voting Rights Act.
Following Shelby County, Roberts took a back seat on electoral cases, assigning opinions to fellow conservative justices. But it remained very much his court, and the thrust of judgments continued to be in one direction only: towards the gradual erosion of voting rights protections.
In 2018 Abbott v Perez made it much harder to prove racial gerrymandering, the technique of carving up electoral districts in such a way as to in effect negate the representation of Black voters. Then in June 2021 Brnovich v DNC sharply raised the bar for challenging racially discriminatory practices such as cutting early voting and limiting absentee voting.
Conservative jurists like to call themselves “textualists” while berating liberal-leaning judges for “judicial activism”, or legislating from the bench. Yet the one common factor that united the voting rights decisions produced by the Roberts court has been their striking willingness to rewrite the text of one of the most celebrated laws ever to be passed by Congress.
So does Thursday’s decision to stick to the law and respect precedent amount to a turning point for Roberts, tempering his previous drive to undermine the Voting Rights Act? Or is this just a temporary pause in his long game?
Olatunde Johnson, an expert on constitutional law at Columbia Law School, urged caution. Potentially seismic rulings are still pending this month before the end of the court’s annual term that could radically impact other aspects of voting rights, affirmative action in higher education and LGBTQ+ equality.
“I understand the temptation to read this as Roberts making pronouncements about the institutional standing of the court,” she said. “But we need to see what happens before we understand what he is trying to say here.”
Levitt pointed out that the elated response from voting advocates to Thursday’s ruling was in itself an indication of how far to the right the court has shifted under Roberts. “People are breathing a sigh of relief not because the court has made it any easier to vote – it hasn’t – but because it didn’t make it so much terribly worse.”
