WASHINGTON — Chief Justice John Roberts was once in the vanguard as the U.S. Supreme Court rolled back the Voting Rights Act. But as his more conservative colleagues showed this week in restoring a Republican-drawn Alabama congressional map, Roberts is no longer in control.
Roberts joined the three liberal justices in dissent as the court blocked a lower court ruling that said the landmark 1965 law required Alabama to have a second heavily Black district.
It’s the latest order from a court whose bold reshaping of the law is leaving its chief justice on an island, often backing his fellow Republican appointees on their general direction but trying unsuccessfully to slow them down. Roberts was similarly in dissent last year when the same five-justice majority let Texas’ six-week abortion ban take effect.
“The chief justice’s opinions signal that while he doesn’t necessarily disagree with the direction in which his conservative colleagues are going, he does not agree with how they’re getting there,” said David Strauss, a constitutional law professor at the University of Chicago law school.
“They are moving too quickly, without paying enough attention to the proper role of the Supreme Court, and, in the Alabama voting rights case, without the respect due to very conscientious lower court judges.”
The Alabama dispute is the first Supreme Court test for the new districts being drawn around the country to govern the next decade’s elections. The case could affect Texas, where President Joe Biden’s administration is challenging the state’s voting maps, and potentially other states whose district lines are under scrutiny from civil rights groups.
Although Roberts said the court was right to accept the case for review, he would have left the lower court ruling in effect for the November election. In all likelihood, that would have given Alabama a second Black — and Democratic — representative in the House next year.
His stance could change once the court takes up the case on the merits. Given his track record in voting and race cases, Roberts, 67, is likely to be sympathetic to Alabama’s contention that it shouldn’t have to carve out a second Black district. The state, which is 27% Black, says it didn’t consider race in drawing its seven districts and shouldn’t have to elevate race over traditional redistricting criteria.
Roberts said Monday that past Supreme Court decisions governing so-called vote dilution claims “have engendered considerable disagreement and uncertainty,” suggesting he was prepared to take a fresh look at those precedents.
Roberts has made no secret of his distaste for what he sees as racial categorizations. “It is a sordid business, this divvying up by race,” he wrote in a 2006 redistricting case. The following year, he wrote in a school integration case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
And he wrote the court’s 2013 decision gutting a Voting Rights Act provision that required jurisdictions with a deep history of discrimination to get federal clearance before changing their voting rules. “Things have changed dramatically” in the South since the law was enacted in 1965, he wrote in that case, Shelby County v. Holder.
But the decision Monday was less about sweeping legal principles than proper litigation procedures. Two of the justices in the majority, Brett Kavanaugh and Samuel Alito, said it was too close to the November election — and Alabama’s May primaries — to force the state to change its voting districts.
They pointed to a 2006 Supreme Court decision that said federal courts shouldn’t change voting rules just before the election. Kavanaugh said the lower court order “would require heroic efforts by those state and local authorities in the next few weeks — and even heroic efforts likely would not be enough to avoid chaos and confusion.”
Dissenting Justice Elena Kagan assailed that reasoning, saying the election was months away and the three-judge panel had moved with “astonishing speed.”
“This court is wrong to stay that decision based on a hastily made and wholly unexplained prejudgment that it is ready to change the law,” Kagan wrote for herself and two other liberal justices.
Roberts didn’t join Kagan’s opinion, but his vote suggested tacit agreement on that point. He wrote that a stay wasn’t warranted because the lower court “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Carrie Severino, president of the conservative Judicial Crisis Network, said she was “surprised and disappointed that the chief justice did not join the majority’s reasonable order.”
But liberals said Roberts’ stance highlighted just how far the court was going.
“Not even Chief Justice Roberts, author of the infamous Shelby County decision, could bring himself to join the radical right majority in draining the Voting Rights Act of all meaning and leaving it a hollow shell,” Harvard Law School professor Laurence Tribe tweeted.
