Hello! Wednesday’s bombshell voting rights decision from the Supreme Court is a testament to Chief Justice John Roberts’s patience and penchant for the long game.
As far back as 1982, when he was a young lawyer in the Reagan administration, he worked to oppose the expansion of a part of the Voting Rights Act of 1965, which had initially covered only intentional discrimination, to address practices that had discriminatory results. Back then, his efforts failed.
On the court, Chief Justice Roberts first flirted with cutting back the law in 2009, four years into his tenure and the year after I started covering the court.
In his majority opinion in that case, Northwest Austin Municipal Utility District No. 1 v. Holder, the chief justice took an off ramp — after planting a time bomb. “We are now a very different nation” from the one that first passed the Voting Rights Act, he wrote. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
His final answer, coming after companion rulings in 2013 and 2021 that offered partial thoughts, arrived Wednesday. The Times provided thorough coverage of the decision itself, the legacy it undid and the redistricting scramble it set off.
For my part, I explored the ruling’s central premise: that the law is no longer needed given how far the nation has come in achieving racial equality.
In this edition of The Docket, I thought I’d have a look at the reaction from the legal academy.
It has been overwhelmingly negative. Election law scholars called the Supreme Court’s voting rights decision on Wednesday a “disaster,” a “catastrophe” and “the worst ruling in a century.”
I struggled to find a prominent law professor who publicly praised the ruling, which may be a testament to the liberal tilt of most law schools. Republican officials and conservative advocacy groups certainly welcomed the decision, with some saying it ranked with landmark precedents promoting racial equality. The Constitution, they said, does not allow the government to make distinctions based on race, whether in public schools, college admissions or the voting booth.
But Nicholas Stephanopoulos, a law professor at Harvard, wrote in a blog post that the decision “is a disaster for minority representation in America — likely to cause the biggest reduction in the number of minority legislators since at least the end of Reconstruction.”
The ruling, Louisiana v. Callais, made it all but impossible to pursue claims under the 1965 law arguing that voting maps had diluted minority voting power. The vote was 6 to 3, with Justice Samuel Alito writing the majority opinion on behalf of all six Republican appointees.
In it, Justice Alito, to use his term, “updated” a four-part test set out in a 1986 decision. His tweaks were technical but consequential, allowing states to defend voting maps that dilute minority voting power as permissible partisan gerrymanders and requiring voters challenging such maps to focus on evidence of “present-day intentional racial discrimination regarding voting.”
Rick Hasen, a law professor at the University of California, Los Angeles, wrote in Slate that the decision was “the culmination of the life’s work of Chief Justice John Roberts and Samuel Alito, who have shown persistent resistance to the idea of the United States as a multiracial democracy.”
Travis Crum, a law professor at Washington University in St. Louis, noted that the court had stopped short of holding the challenged part of the law unconstitutional. That would have been, he wrote in a blog post, an even more devastating blow and “far worse than what we eventually got.”
Professor Crum, noting that the court had taken the unusual step last year of ordering the case to be argued a second time and asking the parties to address a broader question in the process, said that such a ruling had apparently been a live possibility.
“The fact that after a re-argument we got an Alito rewrite” of the provision “rather than an invalidation is strong evidence that a coalition fell apart last term and that an opinion striking down the V.R.A. was on the table,” Professor Crum wrote.
Such a ruling, he wrote, would have had a much bigger blast radius than the one that landed on Wednesday, imperiling state voting rights laws and other anti-discrimination statutes.
Professor Crum also flagged a fresh challenge to the Voting Rights Act that is already on the Supreme Court’s doorstep. In that case, from North Dakota, the U.S. Court of Appeals for the Eighth Circuit ruled last year that only the government, not voters or other private parties, can sue to enforce the voting law.
If the Supreme Court ends up agreeing with the Eighth Circuit, it would upend voting rights litigation nationwide. According to a supporting brief filed by voting rights historians last year in a different case, 93 percent of challenges under the provision since 1982 were brought by private plaintiffs. It seems unlikely that the Trump administration would sue to enforce the law in most voting controversies, meaning the administration’s opponents would be largely shut out of the courts on voting rights for the time being.
The Supreme Court paused the Eighth Circuit’s ruling last July. Three members of the court — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — noted dissents. It takes four votes to grant review.
Coverage of the Voting Rights Decision
Mailbag
Expert Help at the High Court
Has the Supreme Court ever sought a special master or outside expert to deal with a complex scientific or technical issue? — Steven Hunter
The court appoints special masters to hear evidence and issue recommendations on the rare occasions it acts as a trial court. That happens in a narrow class of cases in which it has “original jurisdiction,” typically in disputes between states on subjects like water rights. But unlike actual federal trial courts, which can appoint independent experts to help judges understand complex matters, the Supreme Court relies on the record developed in lower courts and, not without controversy, on evidence provided to it in friend-of-the-court briefs.
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
What I’m Reading
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“The Supreme Court Under Threat: Early Lessons in Judicial Self-Protection,” by Curtis Bradley and Neil Siegel, to be published in The Harvard Law Review. The article considers some of the tools the court has used to preserve its institutional authority.
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“Autocratic Judging,” by Rebecca Brown and Lee Epstein, an exploration in The U.C.L.A. Law Review of “the parallels between what autocratic regimes do to cause democratic backsliding in their realms and what the contemporary U.S. Supreme Court has done in its realm.”
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“Sleep Deprivation in Prison,” a harrowing look by Sharon Dolovich in The Southern California Law Review at “a destructive and dehumanizing experience that, although an inherent feature of prison life, has gone almost entirely unnoticed.”
Closing Argument
A Partisan Divide at a Fancy Dinner Hosted by a Litigant
If the Supreme Court’s six conservative members seemed a little tired Wednesday morning as they dealt a blow to the Voting Rights Act and considered President Trump’s effort to withdraw protections from Haitian and Syrian immigrants, it may have been because all of them had been out the night before at a state dinner in honor of King Charles III.
The three liberal justices had no such excuse. None of them attended. (Neither the White House nor the court said whether they had been invited, though, judging from the balance of the highly partisan guest list, that seemed unlikely.)
Adam Liptak is the chief legal affairs correspondent of The Times and the host of The Docket, a newsletter on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
The post Chief Justice Roberts Played the Long Game on Voting Rights appeared first on New York Times.
