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In surprising voting rights victory, a sign of a court that knows it is under scrutiny
We don't know what's in the justices' minds, but we do know Thursday's decision in favor of the Voting Rights Act was not one many expected last fall when the court heard arguments.
On Thursday morning, Chief Justice John Roberts blinked.
After a long career of skepticism, if not outright hostility, to many aspects of voting rights laws, Roberts not only joined a pivotal majority opinion affirming a trial court decision that found Alabama violated Section 2 of the Voting Rights Act by illegally diluting the voting power of Black voters in its congressional redistricting map, he wrote the court’s opinion.
Of course, by writing the decision himself, that gave him the power to craft the decision as he wanted.
Nonetheless, Roberts crafted a 5-4 decision that not only took care of the case but also included some significant language protecting voting rights — and also took aim at some of Justice Clarence Thomas’s most aggressive points of dissent in the case. Justice Brett Kavanaugh joined most of this opinion, and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joined it all.
But, within the dissent, Thomas — joined at points by Justices Sam Alito, Neil Gorsuch, and Amy Coney Barrett — went on a tear. His 51-page dissent was fractured: Only 15 of the pages were written for all four dissenters. But, in a part of the opinion written for himself, Gorsuch, and Barrett, he argued that Section 2 might be unconstitutional and that the court should consider not allowing Section 2 claims in cases addressing redistricting, at least for single-member districts, at all for virtually the same reason the court has ended partisan gerrymandering claims at the federal level.
But, on Thursday, that was the dissent.
The majority decision itself affirmed a three-judge trial court’s ruling that Alabama’s passed congressional map, which only contained one majority-minority district, violates Section 2 of the Voting Rights Act. As a result, absent some other significant change, it’s almost certain that Alabama will have two majority-minority congressional districts come after the 2024 elections — and Black voters in Alabama will, for the first time, have a realistic chance of sending two people of their choice to Congress.
As with any Supreme Court case, Allen v. Milligan told us about more than the parties and the facts in front of the court. Here, perhaps more than any other case thus far this term, the opinions showed us what the court has done, where it thinks it’s at, and where it could go from here.
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What already happened?
A key part of the case — and an essential point to understanding what happened on Thursday — is what happened nearly a year and a half ago.
On Feb. 7, 2022, a conservative 5-4 majority of the court put that three-judge court’s ruling on hold until the Supreme Court could hear the case. Roberts joined the three Democratic appointees in opposing the stay, but he wrote separately from them in explaining why he was doing so.
Kavanaugh — differing from Thursday — joined with Thursday’s dissenters in 2022 to put the district court’s ruling on hold while agreeing to hear the case.
In so doing, Kavanaugh and Justices Clarence Thomas, Sam Alito, Neil Gorsuch, and Amy Coney Barrett allowed the Alabama redistricting plan that the district court had found violates the Voting Rights Act to be used in the 2022 election.
Roberts wrote that the district court “properly applied existing law” and relevant precedents in the case. While he agreed the court should hear the case due to “the wide range of uncertainties” resulting from the court’s main case on the question, 1986’s Thornburg. v. Gingles, he wrote that, given current law, there was no reason for a stay.
Kagan, in her dissent for the three Democratic appointees — which then included now-retired Justice Stephen Breyer — focused on both the format of the stay coming as part of the court’s shadow docket and the effect of the order, “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”
Kavanaugh, joined by Alito, attempted to justify the vote, writing, “The stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits.”
Thursday’s opinion came one day more than 16 months since that stay was issued. Roberts bluntly, if subtly made the point through juxtaposition in his opinion. After describing the three-judge court’s ruling, Roberts wrote:
In the interim — in the space and time between those two paragraphs — the map that the court on Thursday agreed violated the Voting Rights Act was used to elect Alabama’s congressional delegation in November 2022.
In that election, Alabamians elected six white men and one Black woman to Congress.
What happened today?
In Roberts’s opinion for the court, the majority strongly reaffirmed the longstanding test for considering Section 2 claims, the Gingles test, named after the 1986 case.
As Roberts wrote:
Gingles has governed our Voting Rights Act jurisprudence since it was decided 37 years ago. Congress has never disturbed our understanding of §2 as Gingles construed it. And we have applied Gingles in one §2 case after another, to different kinds of electoral systems and to different jurisdictions in States all over the country.
Specifically, Roberts explained the test requires Section 2 challengers to meet three preconditions to succeed on a claim: The minority group at issue has to be “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district”; “politically cohesive”; and be able to show that “the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.” If those “preconditions” are met, challengers must also then show that, in consideration of the “totality of the circumstances,” the “political process is not ‘equally open’ to minority voters.
In dismissing Alabama’s arguments, Roberts defined them as “Alabama’s attempt to remake our §2 jurisprudence anew.“ In describing Alabama’s arguments, Roberts wrote that the state primarily was seeking to add a new “race-neutral benchmark” requirement to Gingles — forcing plaintiffs to show that even without any consideration of race there would be more majority-minority districts than established by the challenged map. “[W]e find Alabama’s new approach to §2 compelling neither in theory nor in practice,” he wrote.
Notably, Alito, while dissenting, wrote that he was “happy to apply Gingles in these cases.” He differed, however, on how a court figures out and defines a “reasonably configured district” — and warned that going too far in how much race was considered in creating that district could mean that Section 2 and the Constitution would be “headed for a collision.”
For Alito, he thought it likely that race “predominated” in the plaintiffs’ map-making and, thus, should not have succeeded under the first Gingles precondition. Nonetheless, he wrote that he would sent the case back to allow the district court to reassess the challenge in light of his view of how Gingles is properly applied.
Thomas, however, wrote that we should throw out the whole thing. Repeatedly echoing and quoting from his concurring opinion in 1994’s Holder v. Hall, Thomas wrote of his disdain of “the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.”
In a part of his dissent joined by Gorsuch and Barrett, he wrote that “the majority holds, in substance, that race belongs in virtually every redistricting.” Because of this, and going further than Alito, Thomas — again, for the trio of himself, Gorsuch, and Barrett — concludes that the majority “drives headlong into the very constitutional problems that the Court has long sought to avoid. The result of this collision is unmistakable: If the District Court’s application of §2 was correct as a statutory matter, §2 is unconstitutional as applied here.”
What does this tell us about the court and the future?
I think Thursday told us the most about Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, but I’ll also give some brief thoughts about the others.
I’m not inside Roberts’s head. I don’t know if it’s the state of America’s politics, the status of the Supreme Court’s legitimacy and all of the questions he’s facing about it, a short-term political calculation within the court (there are lots of cases left, even this term), or a genuinely changed view, but Roberts decided, at least for now, that the court’s longstanding test for bringing Section 2 claims relating to redistricting should stand. More than that, he authored an opinion explaining how — precisely — such challenges can succeed. While he — and other opinions — make clear those challenges will remain difficult to win, they continue to be allowed. For now.
For Kavanaugh, this is likely his most difficult vote on the Supreme Court yet. He was the changed vote. And, while he disclaimed the 2022 vote as not being a vote on the merits, he now is on record as having allowed elections to proceed that he decided were conducted in violation of the Voting Rights Act. His vote, too, could be a short-term political calculation. He, specifically, raised a question about how long Section 2, as amended in 1982, would remain validly enforceable as “remedial or preventative” legislation under the Fourteenth or Fifteenth Amendments. Noting that Thomas — in a section authored on behalf of himself, Gorsuch, and Barrett — raised this question, Kavanaugh wrote, “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” This, in a nutshell, was the logic behind 2013’s Shelby County v. Holder decision striking down the preclearance formula in Section 4 of the Voting Rights Act — another Roberts opinion, it should be noted — and will certainly be a primary concern for voting rights advocates regarding Section 2 going forward.
As for Barrett, I think the largest bit of information we can glean — from her joining of the constitutional portion of Thomas’s dissent, in particular — is advocates for the universities policies in the affirmative action cases hoping for her vote are likely to be disappointed. Although she didn’t write, it’s almost impossible to imagine someone joining Part III of Thomas’s dissent on Thursday and then upholding the universities’ policies. I could be wrong, but that was my strong reaction reading — and re-reading — Part III on Thursday.
Thomas is not happy. He clearly was not expecting this, and his opinion — and the stilted joining of it from the other dissenters — show that. This was a big, “What good is a six-vote majority if I still can’t get my way?” moment for him.
Alito was more calm — and more, dare I write it, nice — in his dissent than I can recall happening in any major political or ideological dispute in some time. I honestly am just going to have to sit with this and watch what else happens because I’m still surprised.
Gorsuch confused me, but in a different way. He joined both Thomas and Alito’s dissents in full, and while I’m sure there’s a way to argue that they don’t conflict — with conditional language being used, given that they were dissents — but they pretty much did. It’s like he didn’t want to make either Thomas or Alito mad, so he just joined both.
Finally, the Democratic-appointed justices — Sotomayor, Kagan, and Jackson — secured their greatest victory of the term thus far by remaining silent. It is certainly weird — particularly for voting rights advocates — not to have read a word from any of the three Democratic appointees in a big voting rights case that led to 112 pages of opinions, but it’s also pretty clear why. This was a very narrow, though important, victory, and it’s likely that — given the bare majority supporting the decision — writing nothing was the best path to success for them and for the Voting Rights Act on Thursday.
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