No, Chief Justice Roberts, the Country Has Not Changed…Nor Have You

In his widely excoriated 2013 opinion in Shelby County v Holder, where, by a 5-4 vote, the Supreme Court eviscerated the Voting Rights Act, characterized as “the single most effective piece of civil rights legislation ever passed by Congress,” Chief Justice Roberts wrote, “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”  And “current conditions,” he insisted, no longer permitted “preclearance,” which required the federal government to approve in advance any changes to voting rules in states with a history of race-based voter suppression.

From the moment Shelby County was handed down, many Americans condemned Roberts’ naïveté in minimizing the possibilities of a renewal of racially discriminatory voting laws.  (Ruth Bader Ginsburg famously wrote in her dissent, “Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you are not getting wet.”) 

But Roberts was not being at all naïve.  The decision, in which he was joined by those other stalwart champions of equal rights, justices Scalia, Alito, Thomas, and Kennedy, was blatantly calculated to reduce the number of Black votes in states where the African American population was a threat to continued Republican hegemony.

To appreciate just how blatant, it is necessary to review the district and circuit court rulings that preceded Shelby County going to the Supreme Court.

The district court decision, rendered in September 2011 by Judge John D. Bates, a George W. Bush appointee, was quite strong in its refusal to end preclearance.  Voter discrimination was still prevalent, he wrote, and he cited several examples, including some from Shelby County itself, where potential violations had been deterred by federal oversight.  In fact, as Bates noted at some length, Shelby County had for years been trying to end-run preclearance only to be foiled at every turn.

Shelby County appealed but the result in circuit court was the same.  In a 2-1 decision, David Tatel, who had been appointed to the court of appeals for the District of Columbia by Bill Clinton to replace Justice Ginsburg, ruled that although the Constitutional questions were serious, “voting rights discrimination is heavily concentrated in covered jurisdictions, and that overt discrimination persists in those places despite decades of preclearance.”  In fact, to most observers there was little question that without the Voting Rights Act, many of the gains made by Black Americans would likely evaporate. 

Despite ample evidence for the continued need for preclearance, Shelby County appealed to the Supreme Court hoping to find a more receptive audience with the five conservative justices.

They got one.

That Shelby County, along with Citizens United, has contributed to the Supreme Court’s plummeting approval ratings is undeniable and there has been speculation that the chief justice’s increasing moderation and what seemed to many a move toward the center has been prompted more by public opinion than by questions of law.

This conclusion was buttressed when, in Allen v Milligan, the Court, again by a 5-4 vote, with Roberts and Kavanaugh joining the three liberals, ruled that Alabama’s 2021 congressional redistricting after the 2020 census, “illegally packed Black voters into a single district while dividing other clusters of Black voters across multiple districts.”  As such, “The map effectively minimized the number of districts in which Black voters could elect their chosen candidates,” in violation of what was left of the Voting Rights Act.

Clarence Thomas, ever mindful of the need to redress inequities in the law experienced by Black Americans, of which, in theory, he is one, dissented, citing the unfairness of requiring “the State of Alabama to intentionally redraw its longstanding congressional districts so that black voters can control a number of seats roughly proportional to the black share of the State’s population.”  Perish the thought.  He added that the Voting Rights Act “demands no such thing, and, if it did, the Constitution would not permit it.”  Thomas once again seems to be referring to a copy of the Constitution in which the Fourteenth Amendment has been scratched out.

Thomas and his fellow dissenters notwithstanding, Alabama’s map has been redrawn, which will virtually ensure a second Black congressional representative.  A similar case had been brought in Louisiana with the same result.

But any hope that the Court had finally realized that it had a duty to all Americans to protect their fundamental rights was scotched this week when the Supreme Court refused to render a decision on Alexander v. South Carolina Conference of the NAACP, an appeal of a January 2023 district court ruling that found South Carolina’s congressional map unconstitutional. 

The case was similar to Allen in that, following the 2020 census, “South Carolina’s Republican-controlled legislature adopted a new congressional map that moved tens of thousands of Black voters to a different district, effectively making the district a safe seat for Republicans.”  The seat in question is currently held by Nancy Mace.

The three-judge panel agreed that “race was the predominant motivating factor in the General Assembly’s design…and that traditional districting principles were subordinated to race.”

South Carolina appealed directly to the Supreme Court, “arguing that the map was actually a political gerrymander (which is permissible) that merely had a racial effect.”

The problem here is not with the facts of the case, but rather with the timing.  The Court agreed to hear the case in May 2023, but did not do so until October, still giving the justices ample time to render a ruling before the 2024 election cycle commenced.

But they did not.

Borrowing Donald Trump’s favorite mantra that “justice delayed is justice denied…for the other guy,” the Court’s refusal to rule simply ran out the clock in South Carolina’s favor.

As a result of the Court’s foot-dragging, there will not be sufficient time to redraw the maps before the June primary and the same three judges that ruled the redistricting unconstitutional were forced to let the election proceed with illegally drawn congressional districts.

It is impossible to know for certain why the Court refused to rule.  But what is clear is that John Roberts sets the Court’s agenda and wields sufficient sway with his colleagues to ensure that a decision is handed down in a timely fashion when it is needed to be.

Which the chief justice obviously declined to do here.

So it seems that when Roberts wrote, “Any racial discrimination in voting is too much,” he did not mean it to be taken literally.