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Did the 2016 Election Cause John Roberts To Change His Views on Race?

A recent opinion by the Chief Justice shows an awareness of racism absent from his ruling gutting the Voting Rights Act four years ago.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

Like all Amer­ic­ans who care about the fate of the nation I have been glued to my tele­vi­sion, my radio and my Twit­ter feed trying to keep up with the Trump admin­is­tra­tion’s unfold­ing drama. And it has been quite a roller­coaster ride, culmin­at­ing, at least for now, with the appoint­ment of a special coun­sel less than 125 days into the admin­is­tra­tion. 

However, as an academic, it’s my role to place events in histor­ical context, and ignore the seduc­tion of respond­ing to the minute-by-minute outrageous­ness of the Commander in Tweet. As a law professor, I know that while the Exec­ut­ive Branch gets the bulk of the press atten­tion, devel­op­ments in the Judi­cial Branch can be just as import­ant in shap­ing the fate of the nation.

Yet, the judi­cial branch is no more insu­lated from the polit­ical atmo­sphere than the rest of us. We know from polit­ical scient­ists and media experts that partis­ans in the 2016 elec­tion tended to silo their inform­a­tion. Conser­vat­ives watched Fox News and heard one set of argu­ments, and liber­als watched MSNBC and heard another. And mean­while, fake news was spread around like so much manure after the Kentucky Derby.

All of which has led the legal academic in me to wonder what 2016 elec­tion was Chief Justice John Roberts watch­ing? For example, is Roberts cogniz­ant of all the racially-charged rhet­oric Trump used in his campaign? Such rhet­oric – and Roberts’ atti­tude toward it – can have consti­tu­tional implic­a­tions.   

For example, one wonders if the tone of Trump’s campaign had anything to do with Roberts’ major­ity opin­ion in a case decided 6–2 in Febru­ary. The case, Buck v. Davis, was an inef­fect­ive assist­ance of coun­sel claim in a Texas death penalty case. Under Texas law, the jury could only impose the death penalty if they unan­im­ously believed that Buck, who was black, was likely to commit acts of viol­ence in the future.

The defense called a court-appoin­ted psycho­lo­gist who test­i­fied that, using a number of stat­ist­ical factors, concluded that Buck was unlikely to commit future viol­ence. Yet, one of the factors the psycho­lo­gist considered was race, and he noted that blacks were stat­ist­ic­ally more likely to commit viol­ence. In fact, the psycho­lo­gist told the defense, race is “know[n] to predict future danger­ous­ness.” During cross-exam­in­a­tion, the prosec­u­tion had the psycho­lo­gist talk more about his beliefs about race and viol­ence, and refer­enced the testi­mony in clos­ing argu­ment.

The Court held that Duane Buck received inef­fect­ive assist­ance of coun­sel by allow­ing this racially stereo­typed evid­ence to enter the case. Roberts wrote:

Given that the jury had to make a find­ing of future danger­ous­ness before it could impose a death sentence, [the psycho­lo­gist’s] report said, in effect, that the color of Buck’s skin made him more deserving of execu­tion. It would be patently uncon­sti­tu­tional for a state to argue that a defend­ant is liable to be a future danger because of his race.

Roberts contin­ued:

[The psycho­lo­gist’s] testi­mony appealed to a power­ful racial stereo­type—that of black men as “viol­ence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plur­al­ity opin­ion). In combin­a­tion with the substance of the jury’s inquiry, this created some­thing of a perfect storm. [The psycho­lo­gist’s] opin­ion coin­cided precisely with a partic­u­larly noxious strain of racial preju­dice, which itself coin­cided precisely with the cent­ral ques­tion at senten­cing. The effect of this unusual conflu­ence of factors was to provide support for making a decision on life or death on the basis of race.

Roberts then concluded,  “the impact of that [racial] evid­ence cannot be meas­ured simply by how much air time it received at trial or how many pages it occu­pies in the record. Some toxins can be deadly in small doses.” He added, “Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturb­ing depar­ture from a basic premise of our crim­inal justice system: Our law punishes people for what they do, not who they are. Dispens­ing punish­ment on the basis of an immut­able char­ac­ter­istic flatly contra­venes this guid­ing prin­ciple.”

This language may surprise some because of Roberts’ 2013 opin­ion in Shelby County v. Holder. The effect of Shelby County was to effect­ively gut the Voting Rights Act—re­mov­ing the formula used to determ­ine which juris­dic­tions had a history of racial discrim­in­a­tion in voting and whether any changes in voting laws would need govern­ment approval. Roberts was roundly criti­cized for assum­ing that racism was over. He never actu­ally said that, but state­ments such as the follow­ing left him vulner­able to the criti­cism: “Our coun­try has changed, and 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.”

Shelby County displayed consid­er­able will­ful blind­ness on how racial discrim­in­a­tion was still present in voting in 2013. Imme­di­ately after the ruling, south­ern states such as  Texas and North Caro­lina enacted laws that suppressed the votes of African Amer­ic­ans and other minor­it­ies. It’s worth remem­ber­ing Roberts was writ­ing against the back­drop of the 2012 elec­tion when the nation had just re-elec­ted its first black Pres­id­ent. There was optim­ism that Amer­ica had turned the corner on race rela­tions.

Of course, Shelby County and Buck are differ­ent types of cases. Shelby County involves elec­tion law and Buck involves crim­inal proced­ure. Yet in both, Roberts appears to be striv­ing for color blind­ness.

But the Roberts of 2017 in Buck seems to have a keener appre­ci­ation of racism than the Roberts of four years earlier in Shelby County. I wonder whether the 2016 elec­tion and its thinly-veiled racism chal­lenged him to re-eval­u­ate his views on the preval­ence of Amer­ican toler­ance. At 62, Roberts has decades ahead on the bench. It will take many more opin­ions to learn if Roberts’ assump­tions about race have genu­inely evolved.