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gerrymandering
John Roberts Is the Biggest Con Man in US Politics
The biggest yarn Roberts told during his hearing concerned his views on the Voting Rights Act of 1965 (VRA), a cornerstone of American democracy, which the Supreme Court gutted this past April in a redistricting case from the state of Louisiana (Louisiana v. Callais).
As is his prerogative as chief justice, Roberts assigned the task of drafting the Callais majority opinion to fellow conservative Justice Samuel Alito, who responded with a 6 to 3 ruling that held that, henceforth, Section 2 of the landmark legislation would require VRA plaintiffs to meet the nearly impossible burden of proving that redistricting maps challenged as “racial gerrymanders” were created with discriminatory intent rather than for permissible political purposes. The opinion allowed Louisiana to eliminate one majority Black congressional district. It also effectively negated legislation passed in 1982 that had amended Section 2 to permit the Justice Department and private citizens to challenge election laws that have the effect of diluting minority voting power without proving intent.
The court’s accelerating lurch to the right under his stewardship has done permanent damage to the institution, and sparked renewed calls for radical reforms.
Flash back to 2005 and it is apparent that, at best, Roberts misled the judiciary committee. In response to a question from Massachusetts Democratic Sen. Ted Kennedy about the VRA’s constitutionality, Roberts replied, “[T]he existing Voting Rights Act—the constitutionality has been upheld. And I don’t have any issue with that.”
In fact, Roberts had plenty of issues with the VRA. As a young lawyer serving as a special assistant to Attorney General William French Smith in the Reagan administration, Roberts authored upward of 25 memos opposing the 1982 legislation. In them, Roberts urged the administration to defeat any proposed changes to the VRA and to keep the “intent test” established by a 1980 Supreme Court decision (City of Mobile v. Bolden) that required VRA plaintiffs to prove officials explicitly intended to discriminate against minority voters. Adopting the effects test over the intent test, Roberts argued, would create “a quota system [akin to affirmative action] for electoral politics by creating a right to proportional racial representation on elected governmental bodies.”
In another exchange at his confirmation hearing, this time with Wisconsin Democratic Sen. Russ Feingold, Roberts sought to explain away his memos as just part of the job he had been assigned at the time rather than a reflection of his personal views, saying, “I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships [with Second Circuit Judge Fred Friendly and Supreme Court Chief Justice William Rehnquist]. I was not shaping administration policy. The administration policy was shaped by the Attorney General... It was the policy of President Reagan. It was to extend the Voting Rights Act without change.”
Despite young Roberts’s warnings, the 1982 amendments were passed by Congress with overwhelming bipartisan support by a vote of 389 to 24 in the House and 85 to 8 in the Senate. President Ronald Reagan quickly reversed course and signed the amendments into law on June 29, 1982. In 2006, Congress extended the VRA for another 25 years with even greater bipartisan support, by a vote of 390 to 33 in the House and 98 to 0 in the Senate.
Once installed as the nation’s 17th chief justice, it didn’t take Roberts long to show his true colors, declaring in a 2007 majority opinion on busing in public schools (Parents Involved in Community Schools v. Seattle School District Number One) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Two years later, in an otherwise obscure case (Northwest Austin Municipal Utility District Number One v. Holder) involving the elected board of a municipal water district in Texas, he turned his attention to Sections 4 and 5 of the VRA, which required state and local jurisdictions, mostly in the South, with histories of egregious voter discrimination, to obtain advance federal approval—known as “preclearance”—before making changes to their election procedures. Although his opinion left the sections intact, Roberts warned that unless Congress updated the formula to determine which jurisdictions should be subject to the preclearance process, the Supreme Court might stop the process altogether.
In 2013, he made good on that threat. Writing for a 5 to 4 majority in Shelby County v. Holder, he invalidated the preclearance formula and effectively put an end to the process, reasoning that racism in American elections was a thing of the past and there was no longer any justification for singling out Southern states for remedial measures. Shelby led swiftly to an upsurge in restrictive voter ID laws, voting-roll purges, and limitations on mail-in balloting in Republican-led states across the country, especially in the South.
Although Roberts also declared in Shelby that Section 2 of the VRA “is permanent, [and] applies nationwide,” he returned to the attack with his 2019 majority opinion in Rucho v. Common Cause, holding that “political gerrymandering” claims cannot be brought in federal courts because they present nonjusticiable “political questions.” Political gerrymandering has a long history in the United States, Roberts noted, dating back to the salamander-shaped voting districts created by Massachusetts Gov. Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party. “The Constitution,” Roberts argued in Rucho, “supplies no objective measure for assessing whether a districting map treats a political party fairly” and thus provides no basis for proportional political representation. Lacking objective standards to work with, he concluded, the federal courts had no business entering the redistricting wars.
Rucho, in turn, set the stage for Callais in 2026, which put an end to claims of racial gerrymandering, the last bastion of relief from discrimination available under the VRA. Callais gave red states permission to redesign their electoral maps to eliminate “majority-minority districts” (where a minority group comprises a majority of the population) that had been created to boost the electoral power of Black and Latine voters, who tend to lean Democratic. Election law predicts that as a result of Callais, as many as 19 seats in Tennessee, Alabama, Mississippi, South Carolina, Florida, and Louisiana could be eliminated, starting with the November midterms, potentially returning the bulk of the former states of the Confederacy to virtual one-party rule.
As The Nation’s justice correspondent Elie Mystal put it in a mournful post-Callais column, “The ruling effectively ends the VRA, and with it the all too brief era of multiracial democracy in America.” And as Ari Berman added in a piece for Mother Jones, Callais may have been written by Alito, but it “represents the life’s work of Chief Justice John Roberts... [who] has been trying to kill the Voting Rights Act for more than 40 years.”
The severe negative reaction to Callais forced Roberts to do damage control. Addressing a judicial conference in Hershey, Pennsylvania, in early May, he said: “I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides... I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty... We’re not simply part of the political process.”
The problem for Roberts is that his shtick just isn’t working anymore. Any lingering pretense of impartiality ended with his stunning majority opinion in 2024’s Trump v. United States, which offered the president near-complete immunity from criminal prosecution for his official acts. In addition to shielding Trump from legal accountability, the immunity ruling embraced the Reagan-era “unitary executive theory,” which posits that all executive power is concentrated in the person of the president, as a settled principle of constitutional law.
The unitary theory was on full display again in late-June opinions this term on immigration and independent agencies. In Trump v. Slaughter, another 6 to 3 majority opinion written by Roberts involving the firing of a Federal Trade Commissioner, the court overturned a federal law that bars the president from firing members of the independent agencies created by Congress without just cause. In the process, Roberts overruled a precedent decision that had stood since 1935 (Humphrey’s Executor v. United States), which had upheld the contested statute.
In rulings on the immigration cases, both written by Alito and resolved 6 to 3 along party lines, the court upheld the administration’s termination of temporary protected status (TPS) for an estimated 350,000 Haitian and 6,000 Syrian nationals who were allowed to come to the United States to avoid persecution (Mullin v. Doe), and authorized the administration to revive Trump’s first-term policy denying asylum-seekers the right to enter the country before reaching the US-Mexico border (Mullin v. Al Otro Lado).
The immigration decisions sparked uncommonly vitriolic dissents from the court’s three liberal Justices, exposing deepening fissures on the bench. In the asylum case, Justice Sonia Sotomayor blasted the majority, writing: “The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not.” In the TPS case, Justice Elena Kagan all but accused the majority of enabling Trump’s racism, citing the president’s public statements accusing Haitian refugees of “eating” cats and dogs, “poisoning the blood,” and saying they come from a “shithole country” and “probably have AIDS.”
The court’s racial bias was also evident in its “shadow docket,” the term given to emergency appeals that come before the court outside of its standard “merits” docket and are typically resolved rapidly without full briefing and on an interim basis while litigation proceeds in lower courts. In one particularly egregious ruling (Noem v. Perdomo), the Court permitted immigration agents to detain suspected undocumented immigrants on the basis of race, ethnicity, language, location, and occupation, green-lighting unbridled racial profiling.
The shadow docket also included an emergency order permitting Alabama to reinstate a congressional map that eliminates a Black-majority district that the court had invalidated under the VRA just three years ago.
Even in the handful of major decisions the Trump administration lost this term, the cases were narrowly framed. In Learning Resources, Inc. v. Trump, with Roberts writing for a 6 to 3 majority, the court invalidated Trump’s worldwide “liberation day” tariffs under the International Emergency Economic Powers Act, but left the door open for more targeted duties under different statutes. Similarly, in Trump v. Cook, with Roberts writing for a 5 to 4 majority, the court temporarily barred Trump from firing a member of the Federal Reserve Board of Governors while her lower-court challenges continue.
Continuing the trend, with Justice Amy Coney Barrett writing for a 5 to 4 majority in Watson v. Republican National Committee, the court held that existing federal election laws do not prevent Mississippi, and by extension other states, from counting absentee ballots postmarked by election day but received up to five days thereafter. Barrett, however, very carefully noted that her opinion did “not consider the scope of Congress’ authority to regulate federal elections” through legislation, possibly a covert nod to the Safeguard American Voter Eligibility (SAVE) Act that Trump has insisted Congress pass, which would outlaw nearly all mail-in voting.
The same is true for the court’s much-anticipated decision in Trump v. Barbara, on Trump’s Executive Order declaring an end to birthright citizenship under the 14th Amendment for the children of undocumented people. In years past, the court would have unanimously rejected Trump’s gambit. Instead, in a 5 to 4 opinion written by Roberts and joined by Barrett, the order was barely rebuffed for violating the text and history of the amendment.
Roberts may have gained a small measure of redemption with his Barbara opinion, but the court’s accelerating lurch to the right under his stewardship has done permanent damage to the institution, and sparked renewed calls for radical reforms, including the imposition of term limits for the justices and, most far-reaching of all, for an expansion of the bench to as many as 13 members.
To accomplish any significant reforms, however, will require Democrats to stiffen their spines and to take back both houses of Congress later this year and the presidency in 2028. In the meantime, we can take heart that the long con Roberts started in 2005 has been exposed for all to see. And we can heed the call of New York Times columnist Jamelle Bouie to remind ourselves that Roberts and his GOP confederates do not own the future of the Constitution. We do.
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