This Supreme Court is among the most conservative in the history of the institution, with five justices (and sometimes six) eager to undo what they view as past liberal excesses and rewrite the law to their liking. This impatient aggressiveness was on display just a few weeks ago, when the conservative majority — this time, with Roberts on board but Kavanaugh staking out an unusual position on the chief justice’s left — gutted the Clean Water Act. No doubt this zeal will manifest itself as the court’s term draws to a close. Brace yourself, among other things, for the end of affirmative action in higher education.
It is imperative to call out the conservative majority’s radicalism for what it is. And let’s not get carried away. What passes for a win here is preserving the status quo. Still, when the conservative juggernaut falters, when the three remaining liberals are able to cobble together a victory, it is important to pause — to savor the moment, praise the restraint and ponder how it happened.
Thursday’s 5-4 ruling in Allen v. Milligan concerned a congressional redistricting plan in Alabama and Section 2 of the Voting Rights Act, which prohibits rules and practices that, intentionally or in practice, deny minority voters an equal opportunity to elect candidates of their choice. Black people constitute 27 percent of the population in Alabama, but there is just one Black lawmaker among the state’s seven congressional representatives. The question in the case was whether, under Section 2 and the court’s many precedents implementing the law, the state had to create a second majority-Black district to give greater voice to the state’s Black voters.
To put it mildly, this was not a position on which Roberts’s vote was guaranteed. He is no fan of Section 2. In 1980, just as Roberts was launching his legal career, the Supreme Court dramatically curtailed the reach of Section 2, ruling in City of Mobile v. Bolden that the law required proof of a discriminatory purpose, not merely discriminatory effects. When Congress endeavored to strengthen the law, it became Roberts’s passion project, as an aide to Attorney General William French Smith, to stop that move. The title of one illustrative memo, dated Dec. 22, 1981: “Why Section 2 of the Voting Rights Act Should Be Retained Unchanged.”
But Roberts lost. Congress, in a compromise brokered by Sen. Bob Dole (R-Kan.), changed Section 2 to cover practices with discriminatory effects, but also cautioned that lack of proportional representation alone did not constitute evidence of a violation.
Roberts wasn’t done with the Voting Rights Act, though. Once he joined the court, his self-designated role seemed to be to do what he could to restrict the act’s reach. In 2013, in Shelby County v. Holder, he eviscerated the key provision of the law, Section 5, which required jurisdictions with a problematic history to obtain preclearance of changes to voting rules or procedures. In defense of that new limitation, Roberts pointed to the continued availability of Section 2 as a remedy — but showed little affection for that part of the law either.
Then, in 2021, he joined the five other conservatives to limit Section 2’s use in cases involving voting rules and procedures, as opposed to drawing district lines. When the Alabama case first reached the high court in February 2022, Roberts said then that the lower court order for a second majority-Black district should be allowed to take effect in the midterm election. But he noted — ominously, I thought — that Thornburg v. Gingles, the seminal 1986 case applying Section 2, had “engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
And yet, on Thursday, a very different Roberts turned up. “There’s not a single begrudging line in that opinion. It could have been written by Justice Brennan,” said New York University law professor Rick Pildes, referring to the late liberal Justice William J. Brennan Jr., who wrote Gingles.
What happened? First, and I suspect most important, Alabama overplayed its hand, to the annoyance of Roberts and Kavanaugh, with aggressive arguments that would have entailed overruling Gingles and declaring Section 2 unconstitutional. “The heart of these cases is not about the law as it exists,” Roberts noted with some asperity. “It is about Alabama’s attempt to remake our §2 jurisprudence anew.”
Second, the ferocious public blowback from the court’s 2021-2022 term, in which it overruled Roe v. Wade, might be having an effect on the justices.
Third, and I think this explanation is more likely, Roberts and Kavanaugh know what the majority is about to do in the affirmative action cases. It’s not hard to imagine that they were not keen to be part of another major retrenchment of civil rights in the same term.
The moment might not last. Kavanaugh, in a concurring opinion, noted dissenting Justice Clarence Thomas’s argument that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But, Kavanaugh observed, “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
So far, though, much better than expected. Roberts and Kavanaugh followed the law. They showed respect for precedent. They reached the correct result. This should not be news out of the high court, but it is.
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