WASHINGTON (CN) — The Supreme Court’s unexpected endorsement of one of the last remaining vestiges of the Voting Rights Act has led many court watchers on a scavenger hunt to explain how a court set on dismantling safeguards now came to their rescue.
“It's really a very odd thing that people's jaws drop when the court suddenly does the right thing,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone call.
The court issued its 5-4 decision in Allen v. Milligan on Thursday, pairing Chief Justice John Roberts and Justice Brett Kavanaugh with the court’s three liberals to find that Alabama lawmakers diluted the votes of Black residents in violation of Section 2 of the Voting Rights Act. The ruling shocked court watchers not only because of the unusual voting coalition but because Roberts has led the court’s charge in tearing down safeguards for voting rights over his tenure.
“The chief has staked out a pretty conservative ground up until now, so the fact that he not only joined with the liberals but he kept the decision for himself and wrote it himself was very interesting and a little surprising — more than a little surprising,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview.
Roberts’ legacy is largely shaped by his voting rights jurisprudence. In 2013, he authored one of the most significant rulings of his tenure on the bench, Shelby County v. Holder. Vilified by voting rights advocates, the ruling undermined voter protections for states with a history of racial discrimination.
But Shelby County is just one of many cases the Roberts court has used to limit safeguards on voting rights over the last two decades. The Bush appointee also authored the majority opinion in the 2018 case Rucho v. Common Cause, which said federal courts could not rule on claims of partisan gerrymandering. Just two years ago, Roberts joined the majority in Brnovich v. Democratic National Committee, which made it more difficult to challenge discriminatory voting regulations.
When the conservative supermajority took up Allen, the tea leaves all pointed toward another Voting Rights Act setback.
“The reason everyone was concerned is there have been several different decisions that have whittled away at the Voting Rights Act over time — one of the most significant was Shelby County v. Holder in 2013, another case out of Alabama,” said Noah Gillespie, an attorney with Schulte Roth & Zabel who submitted an amicus brief for the Southern Poverty Law Center and other advocacy groups in the case.
Gillespie continued: “Now we have another case, going to the Supreme Court. It's about Section 2 — which is one of the best avenues that communities who are affected have to raise issues with voting systems that they're dealing with — and, you know, what's going to happen?”
What happened was what everyone least expected. The case ended with a fizzle instead of a bang. With a slim majority, the court upheld its prior precedent.
“The court just simply did something that should be completely unsurprising, but yet, it's shocking, which is to follow its own precedent,” Gostin said.
Writing for the majority, Roberts seems to sum the ruling up to a simple reaffirmation of precedent.
“We see no reason to disturb the District Court’s careful factual findings, which are subject to clear error review and have gone unchallenged by Alabama in any event,” Roberts wrote. “Nor is there a basis to upset the District Court’s legal conclusions. The Court faithfully applied our precedents and correctly determined that, under existing law, HB1 violated §2.”
This logic corresponds to how Roberts has described the high court’s role since his confirmation hearings, as an umpire that calls “balls and strikes” but doesn’t “pitch or bat.” The problem legal experts have found is the Roberts court has not always played by those rules.
“The default should be we always follow precedent, except in extraordinary circumstances,” Gostin said. “Now that adage has been turned on its head because we expect that in certain areas, the court is going to do anything but follow precedent, and when they do we’re shocked.”
Even Roberts’ own colleagues were surprised by the majority’s adherence to precedent. Noting Roberts’ long history of questioning race-conscious practices, Justice Clarence Thomas quoted Roberts in a dissenting opinion.
“Worst of all, by making it clear that there are political dividends to be gained in the discovery of new ways to sort voters along racial lines, we prolong immeasurably the day when the ‘sordid business’ of ‘divvying us up by race’ is no more,” Thomas wrote.
Thomas remarked, “what the District Court did here is essentially no different from what many courts have done for decades under this Court’s superintendence.”
To which Roberts replied in a footnote, “That is not such a bad definition of stare decisis.”
Under the Roberts court, court watchers have seen adherence to stare decisis as the exception instead of the rule. Most notably, the court took this path to overturn Roe v. Wade, but the majority has also ruled in similar ways in cases concerning the Second Amendment, administrative law and environmental rights.
“In the Voting Rights Act, the court over the past years has cut back and cut back and cut back on earlier cases,” Lawrence said. “So to simply say, hey, we're just following what we've done in the past, it's not the path that they've been taking up until now.”
Some legal experts have chalked Roberts’ about-face to his concern for the legitimacy of the institution.
“Roberts … is a strong institutionalist,” Lawrence said. “I think he is very concerned about the status of the court, and the court being seen as partisan."
But the confusion in the wake of Roberts’ ruling is seen by other legal experts as a microcosm of the court’s larger problems. Since the Roberts court has come to be known as eager to overturn precedent, the decision by some of the justices to abide by stare decisis brings questions as to why the doctrine should prevail here but not elsewhere. The answer to those questions may lead to assumptions Roberts was intending to avoid in the first place.
“Now he's kind of flip-flopping back and forth, and so it looks like, rather than an institutionalist of integrity, it looks like he's blowing in the political wind,” Gostin said.
Follow @KelseyReichmann
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