In a damning display of justice gone wrong, Marcellus Williams, a Missouri death row inmate, was executed, despite overwhelming evidence suggesting his innocence. His death by lethal injection has sparked outrage, with the blame falling squarely on the shoulders of former President Donald Trump, Senate Minority Leader Mitch McConnell, Missouri Governor Mike Parson, and the conservative U.S. Supreme Court justices who refused to halt the execution.
Williams, 55, was convicted in 2001 for the 1998 murder of Felicia Gayle in her St. Louis apartment. However, no DNA evidence ever tied him to the crime. The St. Louis County Prosecuting Attorney’s Office, which urged a stay of execution, had supported his legal team in its tenacious fight for clemency. The victim’s own family had requested Williams’ sentence be commuted to life without parole, writing, “Marcellus’ execution is not necessary.”
Yet, the conservative majority on the Supreme Court—Chief Justice John Roberts, Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—voted to deny Williams a stay. Their decision condemned an innocent man to death, and it is a stark reminder of how deeply broken the justice system has become under their influence. Liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented, recognizing the glaring miscarriage of justice.
This execution didn’t happen in a vacuum. It is a direct result of the political power play that Trump and McConnell orchestrated. Trump’s appointment of three ultra-conservative justices—Gorsuch, Kavanaugh, and Barrett—solidified a Supreme Court more interested in ideology than fairness. McConnell’s refusal to consider Barack Obama’s 2016 nominee, Merrick Garland, to replace Justice Antonin Scalia was a pivotal move in ensuring this conservative stronghold. He later rushed through Amy Coney Barrett’s confirmation weeks before Trump’s election loss, fully aware of the long-term consequences.
Gov. Mike Parson, a staunch MAGA Republican, ignored every plea for mercy, including those from the prosecutor’s office and over a million citizens and faith leaders who called for clemency. Despite abundant evidence of Williams’ innocence, Parson’s decision to carry out the execution was viewed by many as cruel and motivated by bloodlust.
“This was a lynching. Make no mistake, this was state-sanctioned murder of an innocent Black man,” NAACP President Derrick Johnson declared. “Governor Parson had the responsibility to save a life, and he didn’t. When DNA evidence exonerates a man, capital punishment is not justice—it is murder. Trump, McConnell, and the conservative Supreme Court justices now have blood on their hands.”
Johnson added that Williams’ final moments were a tragic reminder of the human cost of this injustice. Reportedly, Williams lay conversing with a spiritual advisor as the lethal injection took effect. His chest heaved a few times before he went still, as his son and two attorneys watched helplessly from another room. No one from Gayle’s family was present to witness the execution—likely because they had asked for his life to be spared.
Cori Bush, Missouri’s Democratic Representative and staunch opponent of the death penalty, minced no words in condemning Parson’s role. “Governor Parson didn’t just end Marcellus Williams’ life—he demonstrated how the death penalty is wielded without any regard for innocence, compassion, equity, or humanity,” Bush stated. “He ignored the facts, the evidence, and the pleas from all sides. The so-called ‘beyond a reasonable doubt’ standard was tossed out, because Marcellus was a Black man in a system rigged against him.”
Many also said the hypocrisy of the so-called “pro-life” conservatives was laid bare. A U.S. Army veteran and activist, Charlotte Clymer blasted the justices responsible, saying, “These people don’t care about life. They only care about control.”
Williams’ case, much like so many others involving Black men and the death penalty, exposed the deep racial bias embedded in America’s legal system. His attorneys had raised significant concerns about racial discrimination during jury selection, and the lack of credible evidence—especially DNA that didn’t match Williams—only underscored the injustice of his conviction. Yet, the political machinery of Trump, McConnell, Parson, and the Supreme Court moved forward without pause, ensuring his death.
As Bush and others stated, Williams’s death wasn’t just an issue of a broken justice system—this was a political execution. Like Parson, the U.S. Supreme Court chose to ignore the evidence, the pleas, and the humanity of Williams. A litany of social media users posted comments demanding that Williams’ blood is on the hands of Republicans, and the country must reckon with the brutal truth that our highest court, and the leaders who enable it, can no longer be trusted to protect the innocent.
Williams’ execution, despite overwhelming evidence of his innocence, is a searing indictment of a broken system where political power and racial bias outweigh truth and justice, Bush noted. ‘This was not just an execution,” she railed. “This was a state-sponsored lynching, and every person responsible for it must be held accountable.’”
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Stacy M. Brown, NNPA Newswire Senior National Correspondent
A delivery driver in D.C. says he was berated and assaulted by a D.C. coffee shop owner — and he posted video of the encounter on TikTok. Police are now investigating.
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DC coffee shop owner under fire for encounter with Uber Eats driver
An Uber Eats delivery driver from Venezuela is calling for justice after he claims he was berated and assaulted by a D.C. coffee shop owner.
On Monday morning, delivery driver Gregorio José Amundarain Lávate said the encounter began when he went to Canna Coffee on Florida Avenue in Northwest D.C. to pick up an order.
“He told me that the order was ready. When I went to go look for the order, he told me I need to learn English. And I told him I don’t speak English. That’s when he became upset,” said Amundarain Lávate through a translator.
The driver, who is a native of Venezuela, said he began recording the interaction to have as proof and the video has since gone viral on social media.
“Here I am working, trying to provide for my family that’s in Venezuela, and change my life here for the better, little by little,” he said.
In the video, the cafe’s owner Greg Harris can be seen yelling at the driver, saying, “If you’re getting money in America, learn English,” and “Learn English, this ain’t your … country.”
“He was practically humiliating me just because I didn’t know the language,” Amundarain Lávate said.
WTOP attempted to interview Harris but he declined our request.
Harris posted a picture of the WTOP reporter who requested the interview on his Instagram account with the caption, “Wanna know what happened? Gotta pay for an exclusive.” WTOP does not pay for interviews.
D.C. police said it is investigating what happened as a possible hate crime and a case of simple assault. The owner has not been arrested or charged.
In a statement to WTOP, Uber said action has been taken against the business because of what occurred: “We are absolutely disgusted by this behavior. Uber is proud to help people from many backgrounds find work in their communities, and hate has no place on our platform. We have removed this business from the app and are working to get in touch with the courier to check on his well-being.”
The business also advertises it provides delivery through Grubhub.
In an emailed statement, Grubhub said: “We are aware of the incident with another delivery service at Canna Coffee. Delivery partners should always be treated with respect, and we’re doing a full investigation with this merchant before taking any further action.”
WTOP’s Juan Herrera, Ciara Wells and José Umaña contributed to this report.
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Eastpointe High School basketball coach Michael Railey led his team to a district championship and then was fired.
This story has been updated.
The former head coach of the varsity boys basketball team for Eastpointe High School is alleging he was terminated after he filed a racial discrimination complaint against the district’s superintendent.
Michael E. Railey was fired on April 15, just after his team won the district championship, a feat the school only achieved two other times, he says.
Railey recently filed racial discrimination complaints with the Michigan Department of Civil Rights, Michigan Department of Education, and the U.S. Equal Employment Opportunity Commission.
The complaints are just the latest racial allegations to be leveled against Eastpointe Community Schools and its superintendent Christina Gibson.
Railey tells Metro Times he plans to file a federal discrimination lawsuit against the district “in the very near future.”
Railey was fired about six weeks after he filed a racial discrimination complaint with the school district’s human resources department. In the complaint, Railey alleges Gibson “spearheaded a conspiracy to illegally terminate me because of my racial identity as an African American.”
Railey says Gibson tried to get Jones, who was then the school’s principal, to give him “an unsatisfactory recommendation in an attempt to terminate me.” Jones refused, and she was later terminated. According to the complaint, Gibson attempted to “coerce” Assistant Principal Fatima Thompson to change his positive work evaluation so the superintendent had a basis to fire him.
In a witness statement, Thompson corroborated Railey’s version of events, saying Gibson insisted Railey’s previous evaluation prevented her from taking action against the coach.
“She went on to say that he’s arrogant and she doesn’t like him, he’s a horrible coach and didn’t even win games because the kids don’t like him either,” Thompson wrote in the witness statement.
“Michael Railey was discriminated against based on personal feelings and not professional merit. This behavior was completely unacceptable. Michael Railey should have been treated with dignity, respect, and equality. The actions I witnessed went against the principles of fairness and workplace professionalism.”
The human relations department insisted there was no evidence of racial discrimination after what Railey described as a “cursory investigation.”
In a letter to the Michigan Board of Education, Railey said he expects to be fired from his job as a special education teacher because a principal finally agreed to give him a negative evaluation at Gibson’s request.
“I will also most likely be relieved of my duties as a special education teacher because a coconspirator Principal Todd Yarch has given me extremely low evaluations … at the superintendent’s behest.”
Metro Times previously wrote that Gibson did not return a call for comment. We missed her message. When asked to comment Thursday, she declined to discuss the case and referred us to the district’s attorney, who also wouldn’t comment.
A psychology professor warned that hiring based on race alone was illegal, even as the University of Washington (UW) psychology department was downgrading white and Asian candidates, an audio recording obtained by Newsweek has shown.
The university later banned the faculty from hiring tenure-track employees for two years after finding major discrimination in hiring practices.
In an audio recording of a meeting from March 16, 2023, psychology professor Ione Fine objected to the hiring process in which the first- and second-ranked candidates, who were white and Asian American, respectively, got overlooked in favor of the third-ranked hopeful, who was Black.
For that to be achieved, a new “threshold” system was introduced in which any candidate could be chosen once they reached a certain level, circumventing the previous practice of hiring the highest-ranking candidate.
In 1998, Washington state passed a referendum banning race-based hiring in universities, which appears to have been ignored by the psychology department.
At the meeting, Fine objected to staff having just a 15-minute meeting to approve the decision of the selection committee.
“I feel like this idea that we are just deciding on candidates above threshold is a huge change in what we are looking at as a department and I think it should be something that we discuss as a faculty, not something that is decided by the planning committee,” Fine told the meeting.
She added: “I personally am in favor of affirmative action but we are legally not allowed to do it. I actually think we do owe the taxpayers who pay our salaries—the fact that it is illegal and has been democratically decided to be illegal by the taxpayers.”
Students at the University of Washington are pictured on March 6, 2020, in Seattle, Washington. The university has banned its psychology department from hiring tenure-track employees for two years after finding discrimination against white and Asian candidates. Karen Ducey/Getty Images
“So can you explain how we are respecting taxpayers? How are we not doing a [work-] around on what we are legally supposed to do?” she asked.
In response, a member of the selection committee denied that they were hiring based on race alone.
“This is not kind of like we are giving someone a position because of their identity. We have three extremely qualified candidates and we are making a strategic offer based on what the department has deemed the most important … so that is not at all what is happening,” the committee member told Fine.
Fine’s objections came one month before the Black candidate was hired after some Black faculty members urged that she be hired over the white candidate, who was then downgraded from first to third in the rankings.
An internal report discovered the discrimination in hiring procedures.
Other violations included the absence of white staff from meetings with job candidates, deleting a passage from a hiring report to hide discrimination, and discussing ways to “think our way around” a Supreme Court ruling that banned affirmative action in colleges.
A UW spokeswoman told Newsweek on January 3 that the case was exposed when “the dean of the College of Arts & Sciences, responding to an internal whistleblower, requested an internal review of this process by what was then called UCIRO (University Complaints, Investigation and Resolution Office) and is now the Civil Rights Investigation Office.”
The UW report found that when five finalists for a tenure-track assistant professor position were selected in January 2023, they were due to be interviewed by the Women Faculty and Faculty of Color groups so they could assess the general atmosphere of the faculty.
The report said a member of the Faculty of Color did not want any white women at the meeting and complained that the interviews were “awkward” when there was a white candidate. The names of everyone involved are redacted from the UW report.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Darryl George, the 18-year-old Texan suspended from school for his locs, returned to classes this week only to be suspended again.
This latest development comes following a series of suspensions that George had previously served for the same reason, sparking a wave of criticism and debates around issues of racial bias.
The teenager has become the center of a nationwide controversy owing to the disciplinary actions set out by Barbers Hill High School in Mont Belvieu, TX. The district viewed the school’s policy against “locs” as violating the dress code if the hair extends “below the eyebrows or below the ear lobes.”
Darryl George’s Exclusion From Classes Over His Locs
In October, Darresha George, his mother, stated that the school had suspended her son for over a month due to his hairstyle. Furthermore, officials were considering referring him to an alternative education program.
George returned to his class on Tuesday. But his relief was short-lived when they informed him again that he had violated the school’s dress code with his uncut hair.
Officials referred George to in-school suspension because his let-down hair “does not comply with the BH dress code.”
The Barbers Hill Independent School District responded to the backlash over George’s previous suspension. They insisted that though they allow students to wear locs, they limit the length of hairstyles for male students.
The school has since punished him with an additional 13 days of in-school suspension before allowing him back to class. But under one condition: he would have to cut his locs to a length the school deemed appropriate.
George’s mom informs the Associated Press that the family is taking a stand against the perceived discriminatory behavior towards a Black student. They insist that the school should not suspend him because of his hairstyle.
TEXAS HAIR BATTLE CONTINUES: On his first day back at school after spending a month at an off-site disciplinary program, Darryl George was suspended again, because of the length of his locs. On-air now with the latest @KHOU Get caught up & read here: https://t.co/Q8eFKtjcbypic.twitter.com/uUkRbXsc93
For many people of color, locs symbolize racial identity, heritage, and history.
Darryl George’s mom says suspending a student for embracing his cultural identity puts the school’s ethos and commitment to inclusivity into question.
Darryl George’s Family Take Legal Action
The family argues that the school has violated the CROWN Act, which prohibits race-based hair discrimination in Texas. However, officials contended that the act makes no mention of hair length.
The repeated suspensions have raised family members’ concerns about the potential impact on George’s academic performance and mental health.
Singling out someone for their physical appearance can cause feelings of isolation and damaged self-esteem.
Darresha says they “do not see the light at the end of the tunnel.” But they refuse to back down.
Darryl George’s family has filed a civil rights lawsuit against the school district, the state’s governor and attorney.
When Kevin E. Taylor became a pastor 22 years ago, he didn’t expect how often he’d have to help families make gut-wrenching decisions for a loved one who was very ill or about to die. The families in his predominantly Black church in New Jersey generally didn’t have any written instructions, or conversations to recall, to help them know if their relative wanted—or didn’t want—certain types of medical treatment.
So Taylor started encouraging church members to ask their elders questions, such as whether they would want to be kept on life support if they became sick and were unable to make decisions for themselves.
“Each time you have the conversation, you destigmatize it,” says Taylor, now the senior pastor at Unity Fellowship Church NewArk, a Christian church with about 120 regular members.
Taylor is part of an initiative led by Compassion & Choices, a nonprofit advocacy group that encourages more Black Americans to consider and document their medical wishes for the end of their life.
End-of-life planning—also known as advance care planning, or ACP—usually requires a person to fill out legal documents that indicate the care they would want if they were to become unable to speak for themselves because of injury or illness. There are options to specify whether they would want life-sustaining care, even if it were unlikely to cure or improve their condition, or comfort care to manage pain, even if it hastened death. Medical groupshavesupported ACP, and proposed public-awareness campaigns aim to promote the practice.
Yet research has found that many Americans—particularly Black Americans—have not bought into the promise of ACP. Advocates say that such plans are especially important for Black Americans, who are more likely to experience racial discrimination and lower-quality care throughout the health-care system. Advance care planning, they say, could help patients understand their options and document their wishes, as well as reduce anxiety for family members.
However, the practice has also come under scrutiny in recent years: Some research suggests that it might not actually help patients get the kind of care they want at the end of life. It’s unclear whether those results are due to research methods or to a failure of ACP itself; comparing the care that individuals said they want in the future with the care they actually received while dying is exceedingly difficult. And many studies that show the shortcomings of ACP look predominantly at white patients.
Still, researchers maintain that encouraging discussions about end-of-life care is important, while also acknowledging that ACP needs either improvement or an overhaul. “We should be looking for, okay, what else can we do other than advance care planning?” says Karen Bullock, a social-work professor at Boston College, who researches decision-making and acceptance around ACP in Black communities. “Or can we do something different with advance care planning?”
Advance care planning was first proposed in the U.S. in 1967, when a lawyer for the now-defunct Euthanasia Society of America advocated for the idea of a living will—a document that would allow a person to indicate whether to withhold or withdraw life-sustaining treatment if they were no longer capable of making health-care decisions. By 1986, most states had adopted living-will laws that established standardized documents for patients, as well as protections for physicians who complied with patients’ wishes.
Over the past four decades, ACP has expanded to include a range of legal documents, called advance directives, for detailing one’s wishes for end-of-life care. In addition to do-not-resuscitate, or DNR, orders, patients can list treatments they would want and under which scenarios, as well as appoint a surrogate to make health-care decisions for them. Health-care facilities that receive Medicare or Medicaid reimbursement are required to ask whether patients have advance directives, and to provide them with relevant information. And in most states, doctors can record a patient’s end-of-life wishes in a form called a Provider Order for Life-Sustaining Treatment. These documents encourage patients to talk with their physician about their wishes, which are then added to the patient chart, unlike advance directives, which usually consist of the patient filling out forms themselves without discussing them directly with their doctor.
But as far as who makes those plans, research has shown a racial disparity: A 2016 study of more than 2,000 adults, all of whom were over the age of 50, showed that 44 percent of white participants had completed an advance directive, compared with 24 percent of Black participants. Many people simply aren’t aware of ACP or don’t fully understand it. And for Black individuals, that knowledge may be especially hard to come by—one study found that clinicians tend to avoid discussions with Black and other nonwhite patients about the care they want at the end of life, because they feel uncomfortable broaching these conversations or are unsure of whether patients want to have them.
Other research has found that Black Americans may be more hesitant to fill out documents in part because of a mistrust in the health-care system, rooted in a long history of racist treatment. “It’s a direct, in my opinion, outcome from segregated health-care systems,” Bullock says. “When we forced integration, integration didn’t mean equitable care.”
Religion can also be a major barrier to ACP. A large proportion of Black Americans are religious, and some say they are hesitant to engage in ACP because of the belief that God, rather than clinicians, should decide their fate. That’s one reason programs such as Compassion & Choices have looked to churches to make ACP more accessible. Several studies support the effectiveness of sharing health messages, including about smoking cessation and heart health, in church communities. “Black people tend to trust their faith leaders, and so if the church is saying this is a good thing to do, then we will be willing to try it,” Bullock says.
But in 2021, an article by palliative-care doctors laid bare the growing evidence that ACP may be failing to get patients the end-of-life care they want, also known as goal-concordant care. The paper summarized the findings of numerous studies investigating the effectiveness of the practice, and concluded that “despite the intrinsic logic of ACP, the evidence suggests it does not have the desired effect.”
For example, although some studies identified benefits such as increased likelihood of a patient dying in the place they desired or avoiding unwanted resuscitation, others found the opposite. One study found that seriously ill patients who prioritized comfort care in their advance directive spent practically just as many days in the hospital as did patients who prioritized life-extending experiences. The authors of the 2021 summary paper suggested several reasons that goal-concordant care might not occur: Patients may request treatments that are not available; clinicians may not have access to the documentation; surrogates may override patients’ requests.
A pair of older studies suggested that these issues might be especially pronounced for Black patients; they found that Black patients with cancer who had signed DNR orders were more likely to be resuscitated, for example. These studies have been held up as evidence that Black Americans receive less goal-concordant care. But Holly Prigerson, a researcher at Cornell University who oversaw the studies, notes that her team investigated the care of Black participants who were resuscitated against their wishes, and in those cases, clinicians did not have access to their records because the patients had been transferred from another hospital.
One issue facing research on advance care planning is that so many studies focus on white patients, giving little insight into whether ACP helps Black patients. For example, in two recentstudies on the subject, more than 90 percent of patients were white.
Many experts, including Prigerson, agree that it’s important to devise new approaches to assess goal-concordant care, which generally relies on what patients indicated in advance directives or what they told family members months or years before dying. But patients change their mind, and relatives may not understand or accept their wishes.
“It’s a very problematic thing to assess,” Prigerson says. “It’s not impossible, but there are so many issues with it.”
As for whether ACP can manage to improve end-of-life care specifically in areas where Black patients receive worse care, such as pain management, experts such as Bullock note that studies have not really explored that question. But addressing other racial disparities—including correcting physicians’ false beliefs about Black patients being less sensitive to pain, improving how physicians communicate with Black patients, and strengthening social supports for patients who want to enroll in hospice—is likely more crucial than expanding ACP.
ACP “may be part of the solution, but it is not going to be sufficient,” says Robert M. Arnold, a University of Pittsburgh professor of palliative care and medical ethics, and one of the authors of the 2021 article that questioned the benefits of ACP.
Many of the shortcomings of ACP, including the low engagement rate and the unclear benefits, have prompted researchers and clinicians to think about how to overhaul the practice.
Efforts to make ACP more accessible have spanned creating easy-to-read versions absent any legalese, and short, simple videos. A 2023 study found that one program that incorporated these elements, called PREPARE for Your Care, helped both white and Black adults with chronic medical conditions get goal-concordant care. The study stood out because it asked patients who were still able to communicate if they were getting the medical care they wanted, rather than waiting until after they died to evaluate goal-concordant care.
“That, to me, is incredibly important,” says Rebecca Sudore, a geriatrician and researcher at UC San Francisco, who was the senior author of the study and helped develop PREPARE for Your Care. Sudore and her colleagues have proposed “real-time assessment from patients and their caregivers” to more accurately measure goal-concordant care.
In the past few years, clinicians have become more aware that ACP should involve ongoing conversations and shared decision-making among patients, clinicians, and surrogates, rather than just legal documents, says Ramona Rhodes, a geriatrician affiliated with the University of Arkansas for Medical Sciences.
Rhodes and her colleagues are leading a study to address whether certain types of ACP can promote engagement and improve care for Black patients. A group of older patients—half are Black, and half are white—with serious illnesses at clinics across the South are receiving materials either for Respecting Choices, an ACP guide that focuses on conversations with patients and families, or Five Wishes, a short patient questionnaire and the most widely used advance directive in the United States. The team hypothesizes that Respecting Choices will lead to greater participation among Black patients and possibly more goal-concordant care, if it prepares patients and families to talk with clinicians about their wishes, Rhodes says.
Taylor, the pastor, notes that when he talks with church members about planning for end-of-life care, they often see the importance of it for the first time. And it usually persuades them to take action. “Sometimes it’s awkward,” he says. “But it’s now awkward and informed.”
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.”
