Back in October, in her second day of oral arguments as a sitting Supreme Court justice, Ketanji Brown Jackson stunned observers when she decided to confront the state of Alabama, and perhaps her own peers, with the weight of history and precedent and what remains of one of our nation’s most transformative statutes. At issue in Allen v. Milligan, decided on Thursday, was the very future of the Voting Rights Act of 1965, a centerpiece of the civil rights movement that the Supreme Court has all but put in its deathbed—turning it into a shell of what Congress has preserved and updated over decades of struggle. Alabama, in so many words, wanted the law cabined even further.
But Jackson wasn’t convinced. Sounding every bit like a historian, she pointed to the constitutional amendments passed in the wake of the Civil War to undermine Alabama’s suggestion that the Voting Rights Act must be read in a “race-neutral” way—that is, in a way that would forbid the creation of congressional districts that took the race of Black Alabamians into account. Setting the historical record straight, Jackson noted that the Reconstruction framers adopted the post–Civil War amendments precisely to remedy centuries of subjugation and discrimination, so that formerly enslaved people were “equal to everyone else in the society.” In other words, if the amendments guaranteeing equal protection and the right to vote to Black people were never meant to be race-neutral, it follows, then, that the Voting Rights Act, which is modeled after those amendments, isn’t race-neutral either.
We may never know whether this intervention by the Supreme Court’s first Black woman justice contributed to the outcome in Milligan. But on Thursday she was part of an unlikely, five-justice majority—alongside Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh—that upheld decades of precedent establishing that the Voting Rights Act can police attempts to shut out Black voters from political power. More shocking still is that Roberts, long an antagonist of voting rights protections, voted with the liberal justices and assigned himself the majority ruling, relegating Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett to a dissenting and fractured minority. The ruling could have major political ramifications across several states, with experts suggesting Democrats could pick up anywhere from two to six House seats.
With Milligan, there was a lingering fear that the Supreme Court’s conservative supermajority would attempt to bury the Voting Rights Act for good, finishing a job that started a decade ago with Shelby County v. Holder. At least that’s what Alabama suggested should happen. In February of last year, the state turned to the Supreme Court because a lower court had invoked Section 2 of the Voting Rights Act to prohibit the implementation of a redistricting plan that packed Black voters, who make up 27% of Alabama’s population, into a single congressional district out of the states’ seven-seat House delegation. But the judges went further, ordering the state to redraw its congressional map to include at least two Black-majority districts—or alternatively, one Black-majority district plus a second one where “Black voters otherwise have an opportunity to elect a representative of their choice.” But at the time, five justices, minus Roberts, had other plans, allowing Alabama to proceed to the 2022 midterm election with its racially-skewed map—and leaving court watchers, myself included, to wonder whether the Voting Rights Act’s days were numbered.
On Thursday, Roberts answered that question with a resounding no, preserving the law’s validity to challenge voting districts that pack Black voters in such a way as to dilute their electoral strength. As the chief justice put it, precedent commands that result, no matter Alabama’s protestations to the contrary. “Congress is undoubtedly aware of our construing [Section] 2 to apply to districting challenges,” Roberts wrote. “It can change that if it likes. But until and unless it does, statutory stare decisis counsels our staying the course.” That is, the same court that discards precedent it doesn’t like will retain the status quo—and a very feeble one at that—in at least this one area. As Harvard law professor Guy-Uriel Charles framed it, Roberts’s analysis was remarkably, refreshingly conventional.
Yet Roberts being Roberts, he couldn’t help but conclude his opinion in a way that makes clear he still does not like when race is taken into account for any reason. “The concern that [Section] 2 may impermissibly elevate race in the allocation of political power within the States is, of course, not new,” he wrote. “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.”
This clarification matters because still undecided are a pair of affirmative action cases that may put an end to the limited consideration of race in college admissions. As in Milligan, decades-old precedents are on the line in those cases, and Roberts’s and Kavanaugh’s signs of moderation in the byzantine world of redistricting legal challenges, which come around every 10 years following the US Census, may not be on display when the Supreme Court settles whether affirmative action amounts to, in Roberts’s own words, a “sordid business” that should be ruled unconstitutional.
This defection by Roberts, so to speak, may explain why Thomas, who’s normally in lockstep with him in matters of race, unleashed his fury on the majority—and may have given us a taste of what’s to come. Thomas doesn’t harbor the same institutional concerns that Roberts does—indulging ostensibly liberal results to preserve the Supreme Court’s standing when its legitimacy is under fire. Thomas calls things as he sees them. “These cases are yet another installment in the ‘disastrous misadventure’ of this Court’s voting rights jurisprudence,” he wrote. “What distinguishes them is the uncommon clarity with which they lay bare the gulf between our ‘color-blind’ Constitution … and ‘the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.’” He later added: “By applying [Section] 2 in this way to claims of this kind, we encourage a conception of politics as a struggle for power between ‘competing racial factions.’” For good measure, he also alluded to the trope that the Voting Rights Act is a “racial entitlement”—the very words the late Justice Antonin Scalia used when Shelby County was heard.
But as Jackson reminded us when the Supreme Court first heard Milligan, Thomas’s vision of a color-blind Constitution proves too much. The Voting Rights Act and its many amendments over the years have always been the product of Black advocacy and struggle. The very update of the act that Congress passed in 1982, which Roberts as a member of the Reagan administration opposed but that he credited on Thursday, was a rejection of the Supreme Court’s past misreadings of the Voting Rights Act. That the justices, for once, decided to read it consistent with its text and historical backdrop says more about their own excesses than about a law that has always meant what it says.
Cristian Farias
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