GEORGE F. LEE / DEC. 10 Hawaii Supreme Court Associate Justice Sabrina S.McKenna makes an appearance in the Mililani High School gym in December to hear the case of Blosson Bell v. Hawaii Public Housing Authority. McKenna will begin serving as acting chief justice Oct. 1, following the retirement of Chief Justice Mark Recktenwald at the end of September.
GEORGE F. LEE / DEC. 10 Hawaii Supreme Court Associate Justice Sabrina S.McKenna makes an appearance in the Mililani High School gym in December to hear the case of Blosson Bell v. Hawaii Public Housing Authority. McKenna will begin serving as acting chief justice Oct. 1, following the retirement of Chief Justice Mark Recktenwald at the end of September.
Hawaii Supreme Court Associate Justice Sabrina McKenna will begin serving as acting chief justice Wednesday, following the retirement of Chief Justice Mark Recktenwald at the end of September, the state Judiciary announced Thursday.
“On behalf of all judiciary employees, the bar, and the entire State of Hawaii, I express our deepest appreciation to Chief Justice Mark Recktenwald for his Aloha Spirit-imbued leadership over the past 15 years, as well as his commitment to Access to Justice and the Rule of Law, ” McKenna said in a news release.
Recktenwald leaves the Supreme Court due to the state’s mandatory retirement age of 70 for justices and judges.
The Judical Selection Commission must now provide a list of four to six nominees to replace the chief justice. Gov. Josh Green will then select one of the nominees, who must be confirmed by the state Senate.
However, there are not enough nominees from which the governor can make a selection at this time.
McKenna is the longest-serving active jurist in the Judiciary, having also served in the district, circuit and family courts in the Oahu Circuit, including as senior family court judge, according to the release. She has served on the Hawaii Supreme Court since 2011.
“Justice McKenna is uniquely qualified to lead the Judiciary at this pivotal time, ” Recktenwald said. “She has served with distinction at nearly every level of our courts, and her deep experience and unwavering commitment to justice will guide us forward. I am excited she will have the opportunity to use that vast knowledge to lead the Judiciary.”
The Judiciary also announced the departure of Administrative Director of the Courts Rod Maile.
Brandon Kimura, who served as deputy administrative director of the courts, will succeed him Wednesday. Daylin-Rose Heather will serve as deputy.
McKenna thanked Maile for his dedicated leadership as administative director.
“I am extremely humbled and honored to be able to guide the Judiciary from October 1st until the next chief justice is sworn in, alongside Brandon, Daylin, and all our incredible and hard-working judges, administrators and employees, ” she said.
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India recently appointed new judges to the top court and some high courts. But the list has very few women.
In September 2021, a photograph from the Indian Supreme Court of then chief justice NV Ramana flanked by his four female colleagues went viral.
This was the highest-ever tally of female judges in the 34-member top court and was hailed as a “historic moment”.
Many saw it as a turning point for India’s top judiciary and expressed the hope that it would start reversing the skewed gender gap in India’s top court.
But four years later, that hope lies in tatters and the Supreme Court is back to being – as lawyer Sneha Kalita described it – “a men’s club”.
Three of the women seen in that photograph with Justice Ramana – Justice Indira Banerjee, Justice Hima Kohli and Justice Bela M Trivedi – have since retired.
And as no woman has been appointed to the top court since then, Justice BV Nagarathna is now the sole female judge there.
“This is alarming. It’s nothing short of catastrophic,” Ms Kalita, a member of an association of female advocates who have filed a petition in the Supreme Court demanding fair representation of women in courts, told the BBC.
Historically, Indian judiciary has been dominated by men. From 1950, when the Supreme Court came into existence, it took 39 years for Justice Fathima Beevi to be appointed the country’s first female judge in 1989.
“I opened a closed door,” she told news website Scroll in 2018. But in 75 years, the court has welcomed very few women – only 11 out of the 287 judges or a measly 3.8%.
“With just one woman, we are back to near-zero representation in the top court. This has become a men’s club,” Ms Kalita says.
India’s judiciary has been described as “an old boy’s club” [Getty Images]
What is also troubling is that there are only 103 female judges compared with 670 males in the high courts – and at least four do not have a single woman.
This low representation of women has come into sharp focus in recent weeks after the latest batch of appointments was made to the Supreme Court.
The court had two vacancies to fill and it was expected that the Supreme Court collegium – which includes the chief justice and four senior-most judges and recommends names to the government – would use the opportunity to correct the acute gender imbalance.
But in August-end, two high court judges – both male – were elevated to the role. Media reports say that at least three female high court judges in the country were senior than one of the elevated judges.
The collegium’s other recent selections have also ignored women – Bombay High Court last week got 14 new judges, but only one was woman. For Allahabad High Court, the proposed list of 26 candidates includes only five women.
This low representation of women in the top court as well as “in high courts across the country” prompted the Supreme Court Bar Association (SCBA) to put out a strong statement expressing “deep disappointment” and “grave concern”.
SCBA president and senior lawyer Vikas Singh told the BBC that “women make for 40% of all judges in lower judiciary, that is district courts and below, where recruitments are on merit and candidates are chosen through written exams and interviews”.
“But in higher judiciary where they are selected by the collegium, they make for less than 10%. Something very drastic needs to be done. Effort must be made to look for more women,” he said.
Most women lawyers the BBC spoke to welcomed the SCBA intervention. “I’m glad the bar association has raised it, it’s not a women’s problem. It reflects on us as a society,” said senior lawyer Madhavi Divan.
Justice Leila Seth was the first woman to become chief justice of a state high court – but she was never inducted in the top court [Getty Images]
It’s not that all women judges are more gender sensitive – in the past, the BBC has reported on equally misogynistic judgements by male and female judges.
But senior Advocate Jayna Kothari says India is a diverse country and diversity is important for judiciary too.
“Supreme Court is for the entire country so it chooses judges from different high courts to reflect regional diversity. So, why not gender diversity? Women represent 50% of India’s population so they should have an equal representation in the judiciary too.”
Different life experiences, she says, allow people to respond differently to a case which means that having people from diverse backgrounds will lead to better judicial outcomes and help get better judgments.
Ms Kothari says studies also show that the mere presence of women on the bench stops other judges and lawyers from making gender insensitive comments.
But the question still remains: how to get more women judges?
Some have suggested a quota system – where a certain number of seats are reserved for women. They say this would force the judiciary to put its house in order. But critics say that could lower the standards as reservation and merit are contradictory.
Ms Kalita disagrees – women judges and lawyers, like women everywhere, work harder, balancing home life and childcare with careers, she says.
“Many women are much more meritorious than male colleagues. You can’t brush us aside just because we are women. This is discrimination,” she adds.
Ms Kothari says the skewed gender ratio “must be seen as an important public issue, not just as a women’s issue” and that we must aim for 50% but can start with a more realistic goal of 30% in the next five years.
“It should be a matter of pride to appoint women to higher judiciary. Having more women in the high courts and the Supreme Court will also encourage more women to join the legal profession and stay on.
“Otherwise many women would think what’s the point of slogging so hard if we are not going to be be able to reach the top?” she asks.
Ghana’s President John Mahama has fired the country’s Chief Justice Gertrude Torkornoo following a recommendation by an inquiry.
She had been on suspension since April after complaints were lodged against her in petitions by three individuals.
A president-appointed commission then found that “grounds of stated misbehaviour… had been established and recommended her removal from office”, Mahama’s office said on Monday. Ms Torkornoo has dismissed the allegations as unfounded and politically motivated.
The presidency said Mahama was required to act in accordance with the committee’s recommendations. But critics fear it sets a worrying precedent and undermines judicial independence.
In its investigation, the panel reviewed 10,000 pages of evidence from 13 witnesses on behalf of petitioner Daniel Ofori. The chief justice also testified and called 12 other witnesses, including experts.
The two other petitions have not been concluded.
Ms Torkornoo has also been removed as a judge of the Supreme Court following the committee’s findings.
The inquiry found evidence of unlawful expenditure of public funds linked to her private travel. Her spouse and daughter were reportedly paid allowances using public funds during a private trip with her husband to Tanzania in 2023 and another to the US with her daughter.
She also faced allegations of interference in appointments by sidestepping procedures for appointing Supreme Court judges and abusing powers in the transfer of a judiciary employee.
Ms Torkornoo, Ghana’s third female chief justice, was nominated in 2023 by former President Nana Akufo-Addo.
She is the first sitting chief justice to be investigated and dismissed.
Chief justices in Ghana enjoy security of tenure – meaning they can only be removed from office on a few grounds, which include incompetence and misbehaviour.
However, Ms Torkornoo’s legal representatives have dismissed the basis for her removal.
In April, the opposition New Patriotic Party condemned her suspension, describing it as a political witch hunt and an attempt to undermine judicial independence.
Multiple lawsuits challenging the removal process were unsuccessful.
She had previously survived a removal request under Akufo-Addo, who found the petition to have “several deficiencies”.
She had been accused of bias in some of her rulings by the current governing party, which was then in opposition.
A former deputy attorney general, Alfred Tuah-Yeboah, has criticised the decision to remove the chief justice saying it set a “dangerous precedent”, the AFP news agency reports.
“The petition that I read showed no proper grounds to warrant her removal… If the threshold is what we read in the petition, then I fear for the future of the judiciary,” he is quoted as saying.
The judicial arm of government is an independent institution, but the constitution allows for checks to ensure a balance of power.
Critics argue Ms Torkornoo’s removal could erode the independence of the judiciary and allow the executive branch to exert undue influence over judges.
If the executive branch is seen as having too much power over the judiciary, it could undermine public trust in the legal system and create an uneven playing field for justice.
William Nyarko, executive director of the Africa Centre for Law and Accountability, has called for a review of the law governing the removal of a chief justice.
He notes that Ghanaian law does not specifically define what constitutes “stated misbehaviour”, leaving room for varied interpretations and potential manipulation by the executive.
Mr Nyarko cited Kenya as an example, where the process begins with the Judicial Service Commission, ensuring the independence of the two institutions.
The chief justice still has the opportunity to challenge her removal in court, although she may not receive a favourable outcome.
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[Getty Images/BBC]
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Members of the U.S. Supreme Court, seated from left: Associate Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts and Associate Justices Samuel Alito and Elena Kagan. Standing, from left: Associate Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.
Jack Gruber
Jack Gruber-USA TODAY
U.S. Supreme Court Chief Justice John Roberts visited Duke University Thursday evening to speak at a private ceremony honoring the late Justice Sandra Day O’Connor.
O’Connor, the first woman to serve on the nation’s highest court, received this year’s Bolch Prize for the Rule of Law from the Bolch Judicial Institute at the Duke School of Law. The prize has been awarded annually since 2019 “to an individual or organization who has demonstrated extraordinary dedication to the rule of law and advancing rule of law principles around the world.”
O’Connor, who died in December, was honored for her contributions to civics education, notably through her founding of iCivics, a nonprofit that provides free civics resources and games for more than 9 million students each year. O’Connor founded the organization after she stepped down from the Supreme Court in 2006 — one of several post-retirement initiatives that contribute to her legacy of advancing civic education and civil discourse.
Thursday’s ceremony at the Karsh Alumni and Visitors Center included remarks from Roberts and Scott O’Connor, Justice O’Connor’s son, as well as Duke Law Dean Kerry Abrams, Duke Law professor and former O’Connor clerk Lisa Griffin and retired U.S. District Judge Paul Grimm, director of the Bolch Judicial Institute.
Throughout the ceremony, speakers highlighted their personal connections to O’Connor, as well as her accomplishments on the Supreme Court and beyond, including her many trips to countries with fledgling democracies.
Roberts presented archival photos of O’Connor and called attention to one that perhaps best illustrated O’Connor’s lasting legacy: O’Connor, watching as a young girl worked on a laptop computer, exploring the world that was opening to her through her studies. The late justice, who had opened doors for women and girls throughout her career, placed her hand gently on the girl’s shoulder.
“As Justice O’Connor told her sons, our purpose in life is to help others along the way,” Roberts said, referencing the photo.
In a December announcement that O’Connor would receive the award, Roberts called O’Connor “a pathbreaking figure.” When former President George W. Bush picked him to join the Supreme Court in 2005, Roberts was originally nominated to replace the retiring O’Connor, until William Rehnquist’s death created an opening in the position of chief justice.
Grimm described O’Connor’s post-retirement efforts, for which she was primarily awarded the Bolch Prize, as “the capstone of a life dedicated to advancing and protecting the rule of law.”
“Justice O’Connor realized, better than most of us, that without a civically informed public, the rule of law cannot thrive,” Grimm said. “And in order for the public to have faith in our judicial system, which itself is essential to maintaining our democratic form of government, people must first understand how the three branches of government work together.”
O’Connor’s roots and legacy
O’Connor, whom former President Ronald Reagan nominated to the Supreme Court in 1981, was born and raised in Texas and Arizona — the latter being where she spent much of her life.
Throughout Roberts’ remarks, he displayed photos from the duration of O’Connor’s life and career, from her time studying at the Stanford University School of Law, to preparing for her Supreme Court confirmation hearings, to high-fiving basketball player Charles Barkley and dancing with Reagan.
Throughout her career, O’Connor held positions in all three branches of government, serving as assistant attorney general of Arizona, then in the Arizona state Senate, then in two separate courts in Arizona prior to joining the U.S. Supreme Court.
On the Supreme Court, she was known as a moderate and frequent swing-voter who “worked to build consensus” among her fellow justices, a biography published by the Bolch Institute states. When consensus wasn’t possible, O’Connor “often wrote a narrow majority decision or carefully concurred to blunt the impact of a decision that she thought was too broad.”
In a 2003 landmark decision on the consideration of race in college admissions, for example, O’Connor wrote the majority opinion that upheld the University of Michigan Law School’s narrow use of such policies. The precedent set forth in that case stood until last summer, when the court — in a decision written by Roberts — ruled in cases involving UNC-Chapel Hill and Harvard University that such policies are unconstitutional.
Griffin, who served as a clerk for O’Connor at the Supreme Court, said in the Bolch Institute’s December announcement that she “had an extraordinary ability to find the middle ground in the most emotional debates, including those involving reproductive rights and affirmative action.”
Griffin said Thursday that O’Connor is “rightly celebrated for expanding what was possible for women in every profession and, of course, for the careful and pragmatic decisions that she wrote on the Supreme Court.”
O’Connor’s post-retirement work
Beyond O’Connor’s professional accomplishments, Griffin largely focused her remarks on O’Connor’s personality and character, noting that she “was more interesting than the icon that everyone could see from a distance, because she contained some contrast.”
O’Connor was diligent and driven, tending to not show signs of stress, Griffin said. She was focused and calm, but not necessarily relaxed. This was evident during her annual outing with her clerks to see Washington, D.C.’s cherry blossoms, which Griffin described as “a scheduled forward march, regardless of the inclement weather.”
Roberts’ photo presentation included another example of one of O’Connor’s outings with her clerks: a whitewater-rafting trip, with water sprayed high around the inflatable raft, which Roberts noted was beyond the “extracurricular activities” he and other justices offer their clerks.
“Justice O’Connor knew the power of directness, and that included direct engagement with people. I certainly felt that she felt she had a responsibility as the first woman on the Supreme Court to show that she could more than keep up with the boys,” Roberts said. “I think she also felt a responsibility as the most powerful woman in America to be out there putting her best foot forward and promoting the values that help define our country.”
Grimm said Thursday that the Bolch Judicial Institute is “immensely honored” to add O’Connor to its list of recipients.
O’Connor’s son Scott noted that the Bolch Institute was founded the same year, 2018, that O’Connor’s dementia led her to withdraw from public life — but he surmised that she would have been drawn to its purpose and “happily traveled to Durham” to meet its founders and participate in its programming.
Previous recipients of the Bolch Prize are: former Supreme Court Justice Anthony Kennedy, Deputy Chief Justice Dikgang Moseneke of the South Africa Constitutional Court, retired Chief Justice Margaret Marshall of the Supreme Judicial Court of Massachusetts, Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit, and the International Association of Women Judges.
This story was originally published April 4, 2024, 6:30 PM.
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Korie Dean covers higher education in the Triangle and North Carolina for The News & Observer. She was previously part of the paper’s service journalism team. She is a graduate of the Hussman School of Journalism and Media at UNC-Chapel Hill and a lifelong North Carolinian.
PENNSYLVANIA (WPVI) — Portions of the Pennsylvania Courts’ website went down on Sunday night due to a denial of service cyberattack, officials say.
The courts released a statement saying, “At this time, there is no indication that any court data was compromised, and the courts will remain open and accessible to the public.”
A denial of service cyberattack occurs when someone floods the network with traffic until the target cannot respond or simply crashes, preventing access for legitimate users, officials say.
“Our court information technology and executive team is working closely with law enforcement, including the CISA, the U.S. Department of Homeland Security, and the F.B.I to investigate the incident,” Chief Justice of Pennsylvania Debra Todd said in a statement.
The cyberattack is impacting court web services including PACFile, the use of online docket sheets, PAePay, and the Guardianship Tracking System.
The Supreme Court delivered appalling decisions in June—on abortion, guns, and environmental regulation—but the conservative supermajority is poised to strike an even greater blow against American democracy. The justices now have the Voting Rights Act of 1965 in their sights. On October 4, the second day of the new term, they will hear Alabama’s challenge to a federal district court’s finding that the state has to create a new majority-Black congressional district. This is no ordinary case of statutory interpretation. At stake is a crowning achievement of the civil-rights era, and the meaning and measure of racial equality in the hands of a Supreme Court reshaped by Donald Trump.
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Back in February, in a 5–4 vote, the Court’s conservative majority temporarily blocked the district court’s order; the majority didn’t even deign to issue an opinion explaining its reasoning. The justices’ audacious move freed Alabama to hold November’s congressional elections in districts that the lower court had declared invalid. This went too far even for one of the Voting Rights Act’s best-known critics, Chief Justice John Roberts, who dissented. To resurrect a pungent phrase, his colleagues out-segged him. But it would be a mistake to read his dissent as a sign that he has abandoned a project that has obsessed him since his days as a young lawyer in the Reagan Justice Department.
The most likely explanation for his dissent was that he flinched at the optics: Alabama’s request for a stay had arrived on the Court’s “shadow docket.” Every court maintains an emergency docket to handle matters that can’t wait for a full hearing. But during the Trump years, the Supreme Court exploited this device to hand victories to the president without a full briefing, public argument, or even advance notice.
Although Alabama is 27 percent Black, only one of its seven congressional districts—the one that includes Birmingham—has a Black majority, despite large Black populations concentrated in Mobile and in the “Black Belt” counties that stretch across the state. It may have struck the chief justice that using the shadow docket to preserve this status quo in defiance of the lower court’s decision was an unappealing step, and an unnecessary one at that.
When the justices decide the case, Merrill v. Milligan, this term, they will be free not only to overturn the lower court’s decision, but to rewrite the rules governing how the Voting Rights Act applies to similar cases anywhere in the country. Roberts conceded in his dissent that the district court had correctly followed precedent. He also made it clear that, in his view, the precedent is overdue for revision. As we saw in June, overturning precedent is no obstacle to a majority ready and willing to use its power to get what it wants.
The justices have framed the question for this round as “whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.” But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional? And in the dangerous space forced open by that question, the young John Roberts and the chief justice of the United States meet.
Section 2 of the Voting Rights Act prohibits any electoral practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” A violation has occurred if members of a racial or language minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section 2 is about the allocation of political power. It takes aim at “vote dilution,” defined as dispersing a cohesive minority group among several districts or lumping members of the group into one district. “Cracking” and “packing” seem to be what was happening in Alabama.
A 1986 decision, Thornburg v. Gingles, laid out a road map for how to prove such a case, requiring plaintiffs to demonstrate that the minority group was “sufficiently large and geographically compact to constitute a majority.” That test is central to the Alabama case. Obviously, applying that test requires an awareness of race. How can line-drawers, or courts, know whether a minority group’s vote is being diluted without knowing where the members of the group live, and how many of them there are?
And yet Alabama argued that, by taking race into account at all, the district court indulged in “the noxious idea that redistricting begins and ends with racial considerations.” The creation of a new majority-Black district, the state claimed, was therefore nothing more than a “racial gerrymander,” a phrase that Alabama’s lawyers used multiple times in the application for a stay. Unless the justices blocked the order, the state warned, “Alabamians will suffer the constitutional harm of being assigned to racially segregated districts, irreconcilable with the Fourteenth Amendment, the Fifteenth Amendment, and the VRA as initially conceived.” Section 2 is supposed to be a “shield against racial discrimination,” the state’s formal brief reads. “It is not a sword to perpetuate it.”
These sentences merit parsing with care. The words invite a dramatic conclusion: that the heart of the Voting Rights Act, as interpreted by the Supreme Court a generation ago and as applied many times since, is unconstitutional.
What Alabama is saying, essentially, is that any effort to eradicate racial discrimination is itself racial discrimination. But how can that be? How can we know when a Voting Rights Act remedy is called for unless we can take account of race? Alabama is trying to turn the statute inside out and upside down. The district court, in rejecting the state’s argument, observed that it was “obvious” that its logic would “preclude any plaintiff from ever stating a Section Two claim.”
That conundrum will be obvious to the Supreme Court as well. But for the conservative justices, the problem is not how to satisfy the Gingles test but rather the test itself. Roberts made that point in his dissent from the stay. “While the District Court cannot be faulted for its application of Gingles,” he wrote, “it is fair to say that Gingles and its progeny have engendered considerable disagreement and uncertainty.” He then quoted Justice Anthony Kennedy, who warned in a 1994 vote-dilution case that “placing undue emphasis upon proportionality risks defeating the goals underlying the Voting Rights Act.”
Proportionality is a loaded word. Section 2 explicitly disclaims the goal of proportional representation: “Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” But the justices who decided Thornburg v. Gingles remained worried about the specter of proportionality. While nominally unanimous, they produced four separate opinions. They were clearly grappling with whether the decision would hardwire a proportionality standard—in effect, a quota—into a statute that purported to reject it.
That concern has never fully been put to rest. The statute remains unfinished business, like the fight over affirmative action, which the conservatives on the Court have been trying to finish off for decades. It’s not by chance that voting rights and race-conscious university admissions have both ended up on the docket this term. Why wouldn’t they, when their final unraveling is within reach?
The same law firm—Consovoy McCarthy—is representing Alabama and the plaintiffs in two cases the Court will soon hear challenging any consideration of race in admission to Harvard and the University of North Carolina. The firm’s founding partner William Consovoy, a former clerk to Justice Clarence Thomas, is one of the right wing’s go-to lawyers; he defended President Donald Trump in his efforts to shield various records from disclosure in 2019. The firm’s two lawyers on the Alabama brief represent the rising generation: One clerked for Thomas and the other for Roberts.
Consovoy’s case against Harvard failed in two lower federal courts, but those defeats were a warm-up act. Now comes the real show. The first line of his petition to the Court is breathtaking for its brash confidence—and its cheekiness: “It is a sordid business, this divvying us up by race.” Instantly recognizable, this is a quotation from one of Roberts’s earliest Supreme Court opinions, in which he dissented from the majority’s finding of vote dilution in Texas, in a Section 2 case.
Although the Court decided Gingles 19 years before Roberts became chief justice, the case was no abstraction to him. Early in his career, he was deeply involved in a monumental political battle that ultimately led to the decision.
In 1980, the Supreme Court decided City of Mobile v. Bolden. At issue was the validity of a common form of municipal government in the South, a commission consisting of three members who were elected at large rather than from individual districts. At-large systems all but guaranteed that even cities with sizable Black populations would have no Black members in elected positions. And indeed, no Black candidate had ever been elected to the city government in Mobile, Alabama, where racial polarization ran so deep that even a white candidate viewed as sympathetic to the interests of the Black community was doomed to lose.
The plaintiffs in the class-action lawsuit, representing all Black citizens of Mobile, claimed that the at-large system violated Section 2 and the equal-protection guarantee of the Fourteenth Amendment. In a 6–3 decision, the Supreme Court made short work of both claims. Section 2, Justice Potter Stewart wrote for the majority, was no more than a statutory mirror of the Fifteenth Amendment, which bars racial discrimination in voting and which the Court interpreted as applying only to intentional discrimination. The Fifteenth Amendment “does not entail the right to have Negro candidates elected,” Stewart observed gratuitously. The Fourteenth Amendment was also a lost cause; four years earlier, in Washington v. Davis, the Court had ruled for the first time that proof of intentional discrimination was necessary to establish a violation of the equal-protection clause. The fact that a policy disproportionately harmed or disempowered one racial group, in other words, was not enough.
After this devastating ruling, civil-rights activists turned to Congress. The Supreme Court had administered something close to a death blow to Section 2, and only an amendment making clear that the law covered discriminatory outcomes as well as discriminatory purpose could save it. The Democratic-controlled House of Representatives responded quickly and produced such a bill. John Roberts, 26 years old and having recently completed a clerkship for then-Justice William Rehnquist, was working as a special assistant to President Ronald Reagan’s attorney general. His portfolio included voting rights, and in a series of memos that came to light soon after his 2005 Supreme Court nomination, Roberts argued vigorously against the passage of the proposed amendment.
In one memo, he wrote: “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” The proposed “effects test,” he wrote, “would establish essentially a quota system for electoral politics” that was “inconsistent with this Nation’s history of popular sovereignty.”
Ultimately, the Senate passed the bill and Reagan signed it. But the fight wasn’t over. To the contrary—first under Chief Justice Warren Burger, then under Rehnquist, and finally under Roberts himself, the Supreme Court went assiduously about disengaging the federal government from the civil-rights revolution. Busing for integration ended at the school-district line. White contractors were deemed the victims of city policies aimed at guaranteeing minority-owned businesses a share of the work. The Court weakened the part of the Fourteenth Amendment that gives Congress the power to enforce its guarantees.
No one in a position of power has done more for this cause than John Roberts. One of his first major opinions, the Parents Involved school-integration case in 2007, declared his determination to get government out of the business of counting people by race. (Roberts actually borrowed the most famous line of that opinion—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—from another federal judge, without attribution.)
In Shelby County v. Holder, Roberts’s majority opinion essentially killed Section 5 of the Voting Rights Act, the highly successful “preclearance” rule under which jurisdictions with a history of racial discrimination in voting had to get permission from the Justice Department or a federal court before making any change in voting procedures. The South had done so well in correcting the sins of its past, Roberts wrote, that the law as applied could no longer be justified.
The impact of the Shelby County decision was stunning. Within hours, Greg Abbott, then the attorney general of Texas and now the state’s governor, announced that a stringent voter-ID law that had been blocked under Section 5 the previous summer would go into effect “immediately.” That was just the beginning. States across the South and the Southwest have been quick to exploit their new freedom from the federal scrutiny that once would have deterred changes in voting hours, ID requirements, and other seemingly neutral moves with disproportionate effects on minority voters.
The end of Section 2 could be even more damaging because, in many respects, it is the more powerful provision. It applies nationwide, and does not require, as Section 5 did, proof that the challenged policy has made things worse for minority voters, only that such voters have been deprived of an opportunity that should have been theirs. The prospect that Section 2 may now follow Section 5 into oblivion feels at once scarcely believable and sadly inevitable. If this comes to pass, it will be almost impossible to prove that a state has gerrymandered its electoral districts to disempower minority voters, or for a court to order that its map be redrawn.
Look again at that curious phrase from Alabama’s lawyers, the one describing the district-court order as “irreconcilable with the Fourteenth Amendment, the Fifteenth Amendment, and the VRA as initially conceived.” What is “initially conceived” supposed to mean? It can only be a reference to that 1981 fight over the meaning of Section 2, when the young John Roberts argued that it should not be “too easy to prove” that a state had violated the voting rights of its citizens. The Alabama lawyers are speaking directly to Chief Justice Roberts, telling him that the law has been constitutionally problematic for decades, and that now, in this very case, in this very year, he finally has the chance to make it right.
This article appears in the October 2022 print edition with the headline “John Roberts’s Long Game.”
