(CNN) — Justice Ketanji Brown Jackson indicated in an interview Sunday that she supports a binding code of ethics for the Supreme Court, adding that such requirements are “pretty standard” for the federal judiciary.
“From my perspective, I don’t have any problem with an enforceable code,” Jackson, the newest member of the high court, told “CBS News Sunday Morning” in an interview about her new memoir.
“A binding code of ethics is pretty standard for judges. And so I guess the question is, ‘Is the Supreme Court any different?’” Jackson said. “And I guess I have not seen a persuasive reason as to why the court is different than the other courts.”
Asked whether she was considering supporting the idea, Jackson said she was “as a general matter.”
Jackson is the latest justice to indicate an openness to an enforceable code of ethics at a time when the Supreme Court is facing heavy scrutiny — and near record low approval ratings — because of private jet flights and luxury travel accepted by some members of the court. President Joe Biden called for an enforceable code of conduct in late July.
Jackson, Biden’s first and only nominee to the Supreme Court, declined to endorse any particular ethics policy. She also declined to discuss Justice Clarence Thomas, who has been at the center of the court’s ethics controversies. Thomas initially failed to disclose trips and other gifts from GOP megadonor Harlan Crow, though the conservative justice has said he was following the court’s disclosure rules as he understood them at the time.
The high court adopted its own code of conduct last year. But the measure, while historic, was heavily criticized by ethics experts because it included no way to enforce its requirements. Justice Elena Kagan, a member of the court’s liberal wing, defended the code of conduct this summer but also conceded it would be more effective if it included an enforcement mechanism.
Jackson’s interview comes as she is promoting a new memoir, “Lovely One,” to be published Tuesday. She will also be speaking at events in New York, Washington and Atlanta this week.
Critics of a binding code of ethics have pointed to concerns about how to enforce rules against members of a tribunal who are supposed to be the final word on the law. Some proposals, including one advanced by Senate Democrats, would create a panel of lower court judges to review ethics matters.
“It really boils down to impartiality,” Jackson told CBS. “That’s what the rules are about. People are entitled to know if you’re accepting gifts as a judge, so that they can evaluate whether or not your opinions are impartial.”
President Joe Biden is advocating for significant reforms to the United States Supreme Court, following a series of landmark decisions and controversies involving several justices and their spouses.In remarks from the LBJ Presidential Library on Monday, Biden said the court is being used to weaponize an extreme agenda, and, in recent years, extreme opinions have undermined long-established civil rights protections. “In 2022, the court overruled Roe v. Wade, and the right to choose that had been the law of the land for 50 years,” Biden said, “The following year the same court eviscerated affirmative action, which had been upheld and reaffirmed for nearly 50 years as well.”Under Biden’s proposal, each justice would be limited to one 18-year active term, with the current president appointing a new justice every two years. Biden is also asking for an enforceable code of ethics that would require justices to disclose gifts and to recuse themselves when they or their spouses have a conflict of interest. Finally, Biden is asking Congress to start work on a constitutional amendment limiting presidential immunity, stating that no former president is above the law. “We need these reforms to restore trust in the courts. To preserve the system of checks and balances that are vital to our democracy,” Biden said.Biden’s call comes as trust in the high court is dropping among Americans. A June poll from the Associated Press and the NORC Center for Public Affairs Research found that seven in 10 Americans think justices are influenced by ideology. Four in 10 say they have hardly any confidence in the people running the Supreme Court. “I think we’ll have a problem if we don’t do something about Supreme Court ethics,” said Alan Morrison, an Associate Dean at the George Washington University Law School.”It would be constitutional to do it by statute, but I do not think that’s a good idea,” Morrison went on to say. “If it’s done by statute, it can be undone by statute.” Accomplishing any reforms will prove challenging, with Republicans already pushing back on the plan. House Speaker Mike Johnson says the proposal would “tilt the balance of power,” and is “dead on arrival.””Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the court’s recent decisions,” Johnson said.The party split in Congress is not the only reason Morrison believes the plan is unlikely to move forward anytime soon. “That has to go through not only two-thirds of both Houses but also three-quarters of the states. It’ll be a long time coming,” Morrison said. Justice Clarence Thomas, Chief Justice John Roberts and Justice Samuel Alito would be the first three justices who could potentially be affected by term limits.
AUSTIN, Texas —
President Joe Biden is advocating for significant reforms to the United States Supreme Court, following a series of landmark decisions and controversies involving several justices and their spouses.
In remarks from the LBJ Presidential Library on Monday, Biden said the court is being used to weaponize an extreme agenda, and, in recent years, extreme opinions have undermined long-established civil rights protections.
“In 2022, the court overruled Roe v. Wade, and the right to choose that had been the law of the land for 50 years,” Biden said, “The following year the same court eviscerated affirmative action, which had been upheld and reaffirmed for nearly 50 years as well.”
Under Biden’s proposal, each justice would be limited to one 18-year active term, with the current president appointing a new justice every two years. Biden is also asking for an enforceable code of ethics that would require justices to disclose gifts and to recuse themselves when they or their spouses have a conflict of interest. Finally, Biden is asking Congress to start work on a constitutional amendment limiting presidential immunity, stating that no former president is above the law.
“We need these reforms to restore trust in the courts. To preserve the system of checks and balances that are vital to our democracy,” Biden said.
Biden’s call comes as trust in the high court is dropping among Americans. A June poll from the Associated Press and the NORC Center for Public Affairs Research found that seven in 10 Americans think justices are influenced by ideology. Four in 10 say they have hardly any confidence in the people running the Supreme Court.
“I think we’ll have a problem if we don’t do something about Supreme Court ethics,” said Alan Morrison, an Associate Dean at the George Washington University Law School.
“It would be constitutional to do it by statute, but I do not think that’s a good idea,” Morrison went on to say. “If it’s done by statute, it can be undone by statute.”
Accomplishing any reforms will prove challenging, with Republicans already pushing back on the plan. House Speaker Mike Johnson says the proposal would “tilt the balance of power,” and is “dead on arrival.”
“Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the court’s recent decisions,” Johnson said.
The party split in Congress is not the only reason Morrison believes the plan is unlikely to move forward anytime soon.
“That has to go through not only two-thirds of both Houses but also three-quarters of the states. It’ll be a long time coming,” Morrison said.
Justice Clarence Thomas, Chief Justice John Roberts and Justice Samuel Alito would be the first three justices who could potentially be affected by term limits.
Thanks to Donald Trump’s presidential term, the conservative legal movement has been able to realize some of its wildest dreams: overturning the constitutional right to an abortion, ending affirmative action in college admissions, and potentially making most state-level firearm restrictions presumptively unconstitutional. That movement long predates Trump, and these goals were long-standing. But, like the rest of conservatism, much of the conservative legal movement has also been remade in Trump’s vulgar, authoritarian image, and is now preparing to go further, in an endeavor to shield both Trump and the Republican Party from democratic accountability.
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The federal judiciary has become a battleground in a right-wing culture war that aims to turn back the clock to a time when conservative mores—around gender, sexuality, race—were unchallenged and, in some respects, unchallengeable. Many of the federal judges appointed during Trump’s presidency seem to see themselves as foot soldiers in that war, which they view as a crusade to restore the original meaning of the Constitution. Yet in practice, their rulings have proved to be little more than Trump-era right-wing punditry with cherry-picked historical citations.
The 2016 Trump administration was focused on quickly filling the judiciary with judges who are not just ideologically conservative but dedicated right-wing zealots. But that administration “didn’t have all of the chess pieces completely lined up” to get right-wing ideologues into every open seat, Jake Faleschini, of the liberal legal-advocacy group Alliance for Justice, told me. More restrained conservative jurists filled some of those seats. Trump and his allies will be better prepared next time, he said. “Those chess pieces are very well lined up now.”
The federal district judge Matthew Kacsmaryk, a former anti-abortion activist, is the prototypical Trumpist judge. He has publicly complained about the sexual revolution, no-fault divorce, “very permissive policies on contraception,” and marriage equality, and has opposed nondiscrimination protections for the LGBTQ community. And like many of his Trump-appointed peers, Kacsmaryk has predictably issued rulings flouting precedent when doing so is consistent with his personal morals.
One of the most egregious examples came in September, when he dismissed a lawsuit filed by students at West Texas A&M University after the school’s president, Walter Wendler, banned a drag-show benefit aimed at raising money for the Trevor Project, an LGBTQ-focused suicide-prevention organization. Wendler made clear his political objections to the show, referring to drag as “derisive, divisive and demoralizing misogyny.” But even Wendler himself recognized that the show, as expressive conduct, was protected speech; amazingly, he admitted that he was violating the law. He would not be seen to condone the behavior of the show’s actors, Wendler wrote in his message banning the event, “even when the law of the land appears to require it.”
The case landed on Kacsmaryk’s desk. And because Kacsmaryk does not like pro-LGBTQ speech, he simply ignored decades of precedent regarding free-speech law on the grounds that, by his understanding of history, the First Amendment does not protect campus drag shows. The drag show “does not obviously convey or communicate a discernable, protectable message,” Kacsmaryk wrote, and consists of potentially “vulgar and lewd” conduct that could, he suggested, lead to “the sexual exploitation and abuse of children.” (The confidence with which conservatives have accused their political opponents of child sexual exploitation in recent years is remarkable, especially because their concern applies almost exclusively to situations, like this one, that justify legal suppression of their favored targets. It is far easier to find examples of pedophilia in religious institutions—hardly targets of either conservative ire or conservative jurisprudence—than it is to find drag queens guilty of similar conduct.)
The key to Kacsmaryk’s ruling was “historical analysis,” which revealed a “Free Speech ecosystem drastically different from the ‘expressive conduct’ absolutism” of those challenging Wendler’s decision. Echoing the Supreme Court’s recent emphasis on “history and tradition” in rulings such as Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, and New York State Rifle & Pistol Association, Inc. v. Bruen, which struck down gun restrictions in New York State, Kacsmaryk simply decided that the First Amendment did not apply. If not for its censorious implications, the ruling would be an amusing example of some conservative beliefs about free speech: A certain form of expression can be banned as “nonpolitical”—nothing more than obscenity—even as those banning it acknowledge their disapproval of that expression’s political implications.
The invocation of “history and tradition,” however, is no joke. The prevailing mode of conservative constitutional analysis for the past half century has been “originalism,” which promises to interpret the Constitution as it was understood at the time of its writing. As the dissenters pointed out in Dobbs, the Founders themselves imposed no such requirements on constitutional interpretation, noting that the “Framers defined rights in general terms, to permit future evolution in their scope and meaning.” And in practice, originalism has just meant invoking the Framers to justify conservative outcomes.
“It’s a very subjective inquiry,” the NYU law professor Melissa Murray told me. “This insistence on originalism as history and tradition ties you to a jurisprudence that’s going to favor a particular, masculine kind of ideology. Because those are the only people making meaning at that moment in time.”
In 1986, the late conservative legal scholar Philip B. Kurland observed, “We cannot definitively read the minds of the Founders except, usually, to create a choice of several possible meanings for the necessarily recondite language that appears in much of our charter of government. Indeed, evidence of different meanings likely can be garnered for almost every disputable proposition.”
“History should provide the perimeters within which the choice of meaning may be made,” Kurland wrote. “History ordinarily should not be expected, however, to provide specific answers to the specific problems that bedevil the Court.”
Right-wing justices have in all but name imposed this expectation, despite Kurland’s warning. It is no surprise that Kurland was not heeded—he testified against the nomination of Robert Bork, the father of originalism, to the Supreme Court, and cautioned that “he will be an aggressive judge in conforming the Constitution to his notions of what it should be,” one “directed to a diminution of minority and individual rights.” Now, with six Republican appointees on the Supreme Court, every judge is slowly being forced to conform the Constitution to Bork’s notions of what it should be.
In Dobbs and Bruen, and in a later case striking down race-based affirmative action in college admissions, the conservative justices cited historical facts that strengthened their arguments while ignoring those that contradicted them, even when the evidence to the contrary was voluminous. In Dobbs, Justice Samuel Alito, who wrote the majority opinion, ignored the history of legal abortion in the early American republic and the sexist animus behind the 19th-century campaigns to ban it. In Bruen, Justice Clarence Thomas was happy to invoke the history of personal gun ownership but dismissed the parallel history of firearm regulation. In the affirmative-action case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Thomas’s imposition of modern right-wing standards of “color blindness” on the debate over the Fourteenth Amendment was ahistorical enough that it drew an objection from Eric Foner, the greatest living historian of the Reconstruction era.
Not every right-wing judge is as blatantly ideological in their decision making as Kacsmaryk, nor is every Republican appointee a Trumpist zealot. But those with ambitions to rise up the ranks stand out by how aggressively they advertise both qualities. And the proliferation of the language of “history and tradition” is turning originalism from an ideology of constitutional interpretation into something more like a legal requirement. Judges are expected to do historical analysis—not rigorous analysis, but the kind that a prime-time Fox News host will agree with. Conservative originalists seem to see themselves as the true heirs of the Founders, and therefore when they examine the Founders, they can see only themselves, as if looking in a mirror.
It is no coincidence that as conservatism has become Trumpism, originalism has come to resemble Trumpist nationalism in its view that conservatives are the only legitimate Americans and therefore the only ones who should be allowed to wield power. The results for the federal judiciary are apparent as right-wing appeals courts turn “fringe ideas into law at a breakneck pace,” as the legal reporter Chris Geidner has put it, in the hopes of teeing up cases for the Roberts Court, which can hide its own extremism behind the occasional refusal to cater to the most extreme demands of its movement allies.
It is not only the substance of the rulings that has changed—many now resemble bad blog posts in their selective evidence, motivated reasoning, overt partisanship, and recitation of personal grievances—but the behavior of the jurists, who seek to turn public-service roles into minor celebrity by acting like social-media influencers.
Fifth Circuit Judge James Ho, a favorite of the conservative legal movement and a potential future Trump Supreme Court nominee, is one example. In 2022, Ho announced that he was striking a blow against “cancel culture” by boycotting law clerks from Yale after an incident in which Yale students disrupted an event featuring an attorney from a Christian-right legal-advocacy group. In 2021, the Trump-appointed judge Barbara Lagoa complained publicly that American society had grown so “Orwellian” that “I’m not sure I can call myself a woman anymore.” She later upheld an Alabama law making gender-affirming care for minors a felony, arguing, of course, that such care was not rooted in American “history and tradition.” In June 2023, in the midst of a scandal over Justice Thomas receiving unreported gifts from right-wing billionaires with interests before the Court, the Trump-appointed judge Amul Thapar went on Fox News to promote his book about Thomas, and defended him with the zeal of a columnist for Breitbart News.
All of this and more will continue should Trump win a second term. Conservative civil servants who placed their oath to the Constitution above Trump’s attempt to overturn the 2020 election were depicted by Trump loyalists not as heroes but as internal enemies to be purged. Republican-appointed judges will take note of which path leads to professional advancement and which to early retirement.
Already imitating Trump in affect and ideology, these judges are indeed unlikely to resist just about any of Trump’s efforts to concentrate power in himself. They will no doubt invoke “history and tradition” to justify this project, but their eyes are ultimately on a future utopia where conservative political power cannot be meaningfully challenged at the ballot box or in court.
This article appears in the January/February 2024 print edition with the headline “A MAGA Judiciary.”
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.”
