This coming weekend marks the 61st anniversary of Bloody Sunday, so it’s an appropriate time to survey the state of voting rights in America. The short version: Not good. For the past 15 years, the Supreme Court has been on an anti-voter tear. Before it hands down its decision in Louisiana v. Callais, a redistricting case that is likely to weaken the 1965 Voting Rights Act even further, let’s shine a light on the man who made so much of it possible: Chief Justice John Roberts.
You may recall that during Roberts’s confirmation hearings in 2006, he was asked about his position on the law, often referred to as the crown jewel of the civil-rights movement. “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that,” he said.
In retrospect, it’s clear the Voting Rights Act — one of the most transformative laws in American history — was doomed the moment Roberts was confirmed as chief justice.
Roberts’s animus toward the act, and toward the broader struggle to address centuries of racial discrimination in America, has been in plain sight since he served as a young lawyer in the Reagan administration, drafting memos attacking the law and devising legal arguments to undermine it.
The significance of the Voting Rights Act cannot be overstated. Its passage was the long-overdue realization of the 15th Amendment’s guarantee, a century before, that no one’s right to vote could be denied or abridged on account of race. And yet from his earliest days, Roberts has expressed more concern about the unequal treatment of states than the unequal treatment of people. As he put it in one 1982 memo, the law represents “the most intrusive interference imaginable by federal courts into state and local processes.” That same year Congress voted to reauthorize it; crucially, it added to Section 2 of the law the provision, known as the “effects test,” that is at issue in the Callais case.
This test was a response to a 1980 ruling by the Supreme Court which determined that Section 2 required evidence that a state voting law was passed with the intent to racially discriminate before it could be blocked. Following this interpretation, lawmakers, especially in the South, got wise about masking their intent, so the act needed to be updated. Its protections would be of little use if they only worked when lawmakers said out loud, “I want to keep Black people from voting.” The new test applied to any state law that would have a racially discriminatory effect, regardless of any evidence of intent to discriminate. The revision was, effectively, a rebuke of the Supreme Court’s narrow interpretation of the Voting Rights Act.
The update was a success: The number of cases brought under Section 2 increased rapidly, from 3 in 1981 to 175 in 1988. Notably, a huge percentage of these cases were brought by voters themselves, which enhanced the enforcement of the statute. The next time the Voting Rights Act came up, in 2006, it passed by a unanimous vote in the Senate and an overwhelming majority in the House. The process went as it was supposed to: the people’s elected representatives holding months of hearings and considering reams of data before reaffirming a longstanding and popular law.
But John Roberts wasn’t going to let it go that easily. 2006 was his first year as chief justice, and he is nothing if not a patient man. He knew his chance would come before long. In a 2009 case, he flagged another key part of the Voting Rights Act, Section 5, as raising “serious constitutional concerns.” Section 5 provides for the federal oversight of states and jurisdictions, most of them in the South, with a history of racial discrimination in voting. In those places, officials are required to seek approval from the federal government before making any changes to their voting laws.
Roberts believed that the map used to determine who had to go through this “preclearance” process was badly out of date and did not reflect current realities on the ground. Racism was not as bad as it had been in 1965, he believed — after all, didn’t America just elect a Black president?
Four years later, in 2013, he got his first clear shot at the law, and he took it. Writing for a bare majority of the court in Shelby County v. Holder, he effectively destroyed Section 5 by invalidating the preclearance map. “Things have changed dramatically” in the South, Roberts wrote. And because the states have “equal sovereignty” (a principle he more or less pulled out of a hat), it was not fair to continue to subject some of them to the trouble and, more important, the humiliation of extra screening without evidence that they were still practicing discrimination. Congress was free to draw up a new map based on current circumstances, he said.
The chief justice was being disingenuous. He knew as well as anyone that in 2013, a sharply divided Congress was not going to manage that. He was also confronted with mountains of evidence showing that while things had indeed improved, voting discrimination continued to be a chronic problem in the South and other covered areas, one that might worsen without Section 5. Nonetheless, he had succeeded in killing off the heart of the Voting Rights Act based on a made-up principle and at the same time deflected the blame onto another branch.
Meanwhile, states that had spent decades under the preclearance requirement acted like they were the beneficiaries of a jailbreak; some enacted new discriminatory voting laws with a speed unheard of among legislatures, making a mockery of Roberts’s high-minded claims about how much they had changed.
But Roberts’s disingenuousness about Congress and the states paled in comparison to another part of his Shelby County decision, one in which, you might say, the chief was masking his own intent. Anticipating the charges that the Voting Rights Act would be hobbled without a functional Section 5, Roberts reassured readers of the continued power of Section 2 — the provision he had attacked three decades earlier. Unlike Section 5, he wrote, “Section 2 is permanent, applies nationwide, and is not at issue in this case.”
Today, barely more than a decade since those words, Roberts and the other right-wingers are almost certain to disable Section 2 in Callais like they did Section 5 before it.
What happened? You might say that things have changed dramatically. Or, perhaps more accurately, nothing has changed. The chief justice’s reassurance about Section 2 in 2013 was roughly as believable as was his defense of the constitutionality of the Voting Rights Act at his confirmation hearing.
None of this should be surprising. With Shelby County, Roberts’s four-decade project to unburden America of its commitment to racial and political equality finally came to fruition. Did anyone really think he’d drop the ball at the one-yard line? To the contrary, he and his right-wing colleagues have spent the last several years doing an end-zone dance on the back of voting rights.
In 2019, the justices ruled that state legislators can gerrymander their districts as much as they please, disenfranchising tens or hundreds of thousands of their own voters in order to hold onto power, and the federal courts can’t do a thing about it.
In 2021, they began hacking away at Section 2 itself — the last meaningful leg of the VRA. That case, Brnovich v. Democratic National Committee, involved a challenge to two Arizona voting policies that had been found to discriminate against voters of color. The Ninth Circuit ruled for the challengers and blocked the Arizona policies, but the now-supermajority of right-wing justices reversed. In the process they announced new standards, again out of thin air, that make it far harder to bring challenges under Section 2’s effects test. So hard, in fact, that while there were dozens of successful Section 2 lawsuits in the first two decades of this century, only one has succeeded at the Supreme Court since Brnovich.
Even before Callais is decided, we can see the impact of Roberts’s anti-voting crusade. A 2024 Brennan Center report found that the participation gap between white and black voters has been growing steadily since 2012, after narrowing for decades thanks to the Voting Rights Act. One way to illustrate the impact of this gap is that without it, 9 million more ballots would have been cast in the 2020 presidential election — more than Joe Biden’s margin of victory in the popular vote. And the gap is growing fastest in the parts of the country that had been covered by Section 5. So much for “things have changed dramatically.”
John Roberts has taken pains to cast himself as a kinder, gentler version of his ideological predecessors, most notably William Rehnquist, the chief justice for whom he clerked before joining the Justice Department in the early 1980s. Rehnquist opposed much of the civil rights movement, insisting that Brown v. Board of Education was wrongly decided and defending the odious principle of “separate but equal.” He held a similar disdain for the Voting Rights Act itself. “The enforcement provisions of the Civil War Amendments were not premised on the notion that Congress could empower a later generation of blacks to ‘get even’ for wrongs inflicted on their forebears,” Rehnquist wrote.
Roberts doesn’t speak so bluntly, but the sentiment that the Voting Rights Act is about “getting even” — as though its purpose is revenge instead of basic racial equality — is a through line of both men’s jurisprudence. And because Rehnquist and Roberts together have combined to lead the Supreme Court for the last 40 years and counting, we are now faced with two divergent trends in American law and politics: On one hand, Congress (present session excepted) for years responded to an increasingly diverse nation by passing laws to make voting more accessible and less discriminatory; on the other hand, the Supreme Court has repeatedly played the role of reactionary counterweight, first under Rehnquist and then under Roberts.
While the American people’s elected representatives have sought, however imperfectly, to redress centuries of racial discrimination by passing laws for a fairer future, the highest court has been steered for nearly half a century by two men who appear intent on undoing as much of that progress as possible, dragging us back to a darker, more unequal past.
