The Trump years had a radicalizing effect on the American right. But, let’s be honest, they also sent many on the left completely around the bend. Some liberals, particularly upper-middle-class white ones, cracked up because other people couldn’t see what was obvious to them: that Trump was a bad candidate and an even worse president.
At first, liberals tried established tactics such as sit-ins and legal challenges; lawyers and activists rallied to protest the administration’s Muslim travel ban, and courts successfully blocked its early versions. Soon, however, the sheer volume of outrages overwhelmed Trump’s critics, and the self-styled resistance settled into a pattern of high-drama, low-impact indignation.
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Rather than focusing on how to oppose Trump’s policies, or how to expose the hollowness of his promises, the resistance simply wished Trump would disappear. Many on the left insisted that he wasn’t a legitimate president, and that he was only in the White House because of Russian interference. Social media made everything worse, as it always does; the resistance became the #Resistance. Instead of concentrating on the hard work of door-knocking and community activism, its members tweeted to the choir, drawing no distinction between Trump’s crackpot comments and his serious transgressions. They fantasized about a deus ex machina—impeachment, the Twenty-Fifth Amendment, the pee tape, outtakes from The Apprentice—leading to Trump’s removal from office, and became ever more frustrated as each successive news cycle failed to make the scales fall from his supporters’ eyes. The other side got wise to this trend, and coined a phrase to encapsulate it: “Orange Man Bad.”
The Trump presidency was a failure of right-wing elites; the Republican Party underestimated his appeal to disaffected voters and failed to find a candidate who could defeat him in the primary. Once he became president, the party establishment was content to grumble in private and grovel in public. But the Trump years demonstrated a failure of the left, too. Trump created an enormous reservoir of political energy, but that energy was too often misdirected. Many liberals turned inward, taking comfort in self-help and purification rituals. They might have to share a country with people who would vote for the Orange Man, but they could purge their Facebook feeds, friendship circles, and perhaps even workplaces of conservatives, contrarians, and the insufficiently progressive. Feeling under intense threat, they wanted everyone to pick a side on issues such as taking the Founding Fathers’ names off school buildings and giving puberty blockers to minors—and they insisted that ambivalence was not an option. (Nor was sitting out a debate, because “silence is violence.”) Any deviation from the progressive consensus was seen as a moral failing rather than a political difference.
The cataclysms of 2020—the pandemic and the murder of George Floyd—might have snapped the left out of its reverie. Instead, the resisters buried their heads deeper in the sand. Health experts insisted that anyone who broke social-distancing rules was selfish, before deciding that attending protests (for causes they supported, at least) was more important than observing COVID restrictions. The summer of 2020 made a best seller out of a white woman’s book about “white fragility,” but negotiations around a comprehensive police-reform bill collapsed the following year. As conservative Supreme Court justices laid the ground for the repeal of Roe v. Wade, activist organizations became fixated on purifying their language. (By 2021, the ACLU was so far gone, it rewrote a famous Ruth Bader Ginsburg quote on abortion to remove the word woman.) Demoralized and disorganized, having given up hope of changing Trump supporters’ minds, the left flexed its muscles in the few spaces in which it held power: liberal media, publishing, academia.
If you attempted to criticize these tendencies, the rejoinder was simple whataboutism: Why not focus on Trump? The answer, of course, was that a bad government demands a strong opposition—one that seeks converts rather than hunting heretics. Many of the most interesting Democratic politicians to emerge during this time—the CIA veteran Abigail Spanberger, in Virginia; the Baptist pastor Raphael Warnock, in Georgia; Michigan Governor Gretchen Whitmer, who promised to “fix the damn roads”—were pragmatists who flipped red territories blue. When it came to the 2020 election, Democrats ultimately nominated the moderate candidate most likely to defeat Trump.
That Joe Biden would prevail as the party’s candidate was hardly a given, however. He defeated his more progressive rivals for the Democratic nomination only after staging a comeback in the South Carolina primary. He was 44 points ahead of his closest rival, Bernie Sanders, among the state’s Black voters, according to an exit poll. That is not a coincidence. These voters recognized that they had far more to gain from a candidate like Biden, who regularly talked about working with Republicans, than from the activist wing of the party. As Biden put it in August 2020, responding to civil unrest across American cities: “Do I look like a radical socialist with a soft spot for rioters?”
Biden is older now, and a second victory is far from assured. If he loses, the challenges to American democratic norms will be enormous. The withering of Twitter may impede Trump’s ability to hijack the news cycle as effectively as last time, but he’ll only be more committed to enriching himself and seeking revenge. I hope that the left has learned its lesson, and will look outward rather than inward: The battle is not for control of Bud Light’s advertising strategy, or who gets published in The New York Times, but against gerrymandering and election interference, against women being locked up for having abortions, against transgender Americans losing access to health care, against domestic abusers being able to buy guns, against police violence going unpunished, against the empowerment of white nationalists, and against book bans.
The path back to sanity in the United States lies in persuasion—in defending freedom of speech and the rule of law, in clearly and calmly opposing Trump’s abuses of power, and in offering an attractive alternative. The left cannot afford to go bonkers at the exact moment America needs it most.
This article appears in the January/February 2024 print edition with the headline “The Left Can’t Afford to Go Mad.”
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.”
