The supreme court shocked the nation on Thursday by doing something uncharacteristic, unexpected, and to many, downright confusing: they declined to eviscerate what remains of the Voting Rights Act.
By the standards of the reactionary court, the result in Allen v Milligan, a challenge to an Alabama congressional district map that crams most of the state’s 27% Black voting population into just one district, was downright astounding.
Reaffirming a lower court, Scotus found that the map, which was drawn by the Republican-controlled Alabama state legislature after the 2020 census, illegally diluted the voting power of Black Alabamans, and that Alabama is now required to redraw its maps so that Black voters make up a majority of the electorate in a second district. Given the racially polarized voting patterns in Alabama and elsewhere, the decision virtually guarantees that Democrats will gain another congressional seat in Alabama in the 2024 election.
The ruling was an especially surprising departure for Chief Justice John Roberts, who authored the 5-4 decision upholding section 2 of the Voting Rights Act. Because both during his time on the court and for decades before it, Roberts has been a passionate opponent of voting rights broadly, and of the 1965 law’s prohibitions on racial gerrymandering in particular.
Maybe this habitual distaste for the cause of Black ballot access is part of why the chief justice’s opinion, along with a concurrence from Brett Kavanaugh, who also joined the liberals in ruling against Alabama, contained limiting language that seemed to signal to Voting Rights Act opponents to try again. The Voting Rights Act, Roberts wrote, “may impermissibly elevate race in the allocation of political power within the states”. That is, it may be unconstitutional, according to Roberts, for Congress to intervene to redress America’s history of racist political exclusion and disenfranchisement.
“Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.” It read almost like a plea to racial gerrymandering advocates from the chief justice: don’t worry, I’m still on your side.
Meanwhile Kavanaugh, who has developed an interesting habit of writing separately even when his reasoning does not differ substantially from that of his colleagues, hinted in his concurrence at a legal roadmap for Republicans to continue their attacks on the Voting Rights Act: by claiming that Congress’s 1982 amendment reaffirming the VRA’s section 2 protections is simply too old.
“Even if Congress in 1982 could constitutionally authorize race-based redistricting under section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future,” Kavanaugh wrote. It’s a handy trick the court likes to play: to say that Congress must act – or in this case, that Congress must act again – to protect people’s rights, when the justices know that Congress, in its present state of gridlock and dysfunction, cannot act. And thus, policymaking power that should constitutionally belong to Congress is transferred, as if by magic, into the supreme court’s hands.
So why did the supreme court decline to use that power in Milligan? Why not move to weaken section 2 even further? Why hand the Democrats – who, in the interest of frankness, it should be acknowledged are the political and ideological opponents of six of the court’s nine justices – a victory? In his opinion, Roberts makes a pean to the virtues of stare decisis, repeatedly scolding Alabama for their “attempt to remake our section 2 jurisprudence anew”. But Roberts himself has been all too eager to remake VRA jurisprudence as he sees fit, often with little regard for precedent.
He did it dramatically almost exactly 10 years ago, with his opinion in 2013’s Shelby County v Holder, which gutted section 5 of the Voting Rights Act, eliminating the pre-clearance regime that had required states with a history of racial discrimination in voting to have their redistricting maps approved at the federal level. It was this ruling that created the conditions for Alabama to draw their illegal congressional map in the first place.
Shelby reasoned that section 5 was not necessary, because disenfranchised Black voters could still sue to restore their voting rights under the VRA’s section 2. But then the court cut back section 2 significantly, in 2021’s Brnovich v Democratic National Committee, which made it much harder for plaintiffs to enforce the VRA’s protections. What’s left of section 2, and the 1965 Voting Rights Act, has been hobbling along, weakened and wounded, ever since. Even the now-illegal maps in Alabama have, in a way, already done their job: even though a district court had found that the map violated the Voting Rights Act, and even though the supreme court has now found the map to be illegal, Scotus still intervened ahead of the 2022 midterms to allow the racist gerrymander to be used in that election.
This is part of why the court did not find it necessary to finally eliminate section 2: with voting rights already so diminished, and Republicans already ensconced in power in the House, it might have been easier for Roberts and Kavanaugh to resist the temptation to finish the job.
There could have also been some more vulgar political concerns at play. A year after the supreme court eliminated the right to abortion and radically reshaped women’s lives and civil rights in Dobbs, the court’s popularity is at a nadir. A series of ethics scandals – most notably Clarence Thomas’s luxury yacht trips, cushy real estate deals and great-nephew’s private school tuition, all paid for by the rightwing billionaire Harlan Crow – have attached a stench of corruption to the justices. And the court is gearing up to issue a series of extreme, unpopular decisions in the coming weeks, which are poised to further radically reshape American life in ways the people do not want and did not vote for.
The court is almost certain to begin unravelling public accommodations civil rights laws, by allowing businesses to discriminate against gay people. They are poised to ban affirmative action in college admissions. They have already struck blows to unions, and to the Clean Water Act. The decision to preserve the already dismal voting rights status quo may have been an attempt by Roberts to preserve what’s left of the court’s legitimacy. But like voting rights, that’s already looking quite weak.
Moira Donegan is a Guardian US columnist
