Supreme Court 2013: The Year in Review

John Roberts’ Stealthy Plan to Destroy the Voting Rights Act
An email conversation about the news of the day.
June 25 2013 3:40 PM

Supreme Court 2013: The Year in Review

VIEW ALL ENTRIES

John Roberts’ stealthy plan to destroy the Voting Rights Act.

Supreme Court Justices Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan (L-R) applaud prior to President Obama's State of the Union speech on Capitol Hill in Washington.
From left, Supreme Court Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan applaud prior to President Obama's State of the Union speech on Capitol Hill on Feb. 12, 2013.

Photo by Charles Dharapak/Pool/Reuters

Chief Justice John Roberts’ opinion on the Voting Rights Act takes away one of the most important tools for ensuring minority rights that Congress has ever created. Yet the opinion sounds respectful and modest. This is the genius of John Roberts. He makes big steps to the right look like small ones. He is the master of conservative stealth, a chief justice who eschews flair and drama. In that sense, he’s the anti-Scalia—no flame throwing, thank you. Just getting the job done.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Eric, you’ve explained better than I can why Tuesday’s ruling, by the usual dreary 5–4 ideological split, is the opposite of judicial modesty—a term that generally means courts deferring to elected legislatures. The five conservatives struck down a law reauthorized by Congress just seven years ago because they don’t think the evidence for it was strong enough. Roberts reminds Congress: We warned you. True enough: In 2009, the court suggested that it was uncomfortable with Section 5, the part of the Voting Rights Act that requires nine states in the South (and a few other scattered towns and cities) to go to court or the Department of Justice to make any change to an election law. But why does Congress have to jump when the court says jump? With his 2009 opinion and now this one, Roberts set a trap for Congress. Instead of striking down Section 5 itself, in one mighty and attention-grabbing blow, the conservative majority is saying: Hey, this is on you, lawmakers. Just come up with a better way to justify this law and continue to use it to make elections fairer. Please. Really. Go right ahead.

But it’s laughable to think this divided Congress would take on that task. And of course Roberts knows that. For all practical purposes, Tuesday’s decision means the end of Section 5. That means unfair voting rules just got much harder to stop. Exhibit A: the voter ID law in Texas, blocked by Section 5, which will now “take effect immediately,” the state attorney general says. Exhibit B: the gerrymandering that created the 23rd Congressional District in Texas, which I wrote lots about here. It’s a part of Texas with lots of Hispanics. They tend to vote for Democrats. But in 1992, the Republican-controlled legislature redrew the 23rd Congressional District to include more Republican voters. They elected a Republican to Congress. In 2003, they moved 100,000 Latinos out of the district to keep the seat Republican. In 2006, the Supreme Court ruled that the district violated the Voting Rights Act (not the part at issue in today’s case—another part called Section 2, which is alive and well). Texas went back to the drawing board. With new lines that included more Democrats, a Democrat won the next congressional election. But after the 2010 census, the Republicans in control of the state tried again. This time, they were clever. In the words of the court that heard a challenge to the new lines, the mapmakers “consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in the CD 23 had changed.” Lo and behold, the new district elected a Republican.

Advertisement

Because of Section 5 and the requirement that states get changes like this preapproved, the court that rejected the new lines for Texas’ 23rd Congressional District last August did so quickly, before the Republican holding office could wield the power of incumbency to consolidate his power. But without Sections 4 and 5, as civil rights lawyer Nina Perales put it to me, “The first election after redistricting goes to the discriminators.”

Roberts said that none of this matters, even though these kinds of redistricting problems were very much part of the record Congress reviewed before it reauthorized the Voting Rights Act in 2006. It doesn’t matter, Roberts said, because such gerrymandering isn’t the kind of “flagrant” or “rampant” discrimination that infected the South when the Voting Rights Act was first passed. “History did not end in 1965,” Roberts writes. And: “Nearly 50 years later, things have changed dramatically.” And: “The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years.” All true. And doesn’t it start to sound so deceptively reasonable? After all, the new South is not the same as the old South.

But just because the methods of diminishing minority voting power have changed doesn’t mean the problem has evaporated. And in fact, Congress had evidence showing that racially polarized voting persists in the regions covered by Section 5 more than in the rest of the country. Why does discrimination have to be “flagrant” and “rampant” for Congress to address it? Yes, Section 5 wasn’t perfect. Roberts is surely correct that it wouldn’t be written the same way from scratch today. But it is the job of Congress, not the court, to fashion its weapons for fighting discrimination.

The worst aspect of the loss of Section 5 won’t be the widely publicized laws like voter ID requirements, which depress minority turnout. The worst part will be the little stuff—the changes to local school board and city council elections that are too small to make headlines. Like this fight over how to elect the school board in Beaumont, Texas, waged along racial lines. Without Section 5, the Brennan Center for Justice warns in a recent report laying out what’s at stake, “the public might not even know about such changes sufficiently in advance of an election to seek relief from the courts.” Or if the public does know, it will all seem technical and small-bore. And any problems will seem to be Congress’ fault, anyway. John Roberts is very good at getting what conservatives want while also getting the court off the hook.

TODAY IN SLATE

History

The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Television

See Me

Transparent is the fall’s only great new show.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

  News & Politics
Damned Spot
Sept. 30 2014 9:00 AM Now Stare. Don’t Stop. The perfect political wife’s loving gaze in campaign ads.
  Business
Moneybox
Sept. 30 2014 10:44 AM Bull---- Market America is overlooking a plentiful renewable resource: animal manure.
  Life
Atlas Obscura
Sept. 30 2014 10:10 AM A Lovable Murderer and Heroic Villain: The Story of Australia's Most Iconic Outlaw
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Behind the Scenes
Sept. 30 2014 10:59 AM “For People, Food Is Heaven” Boer Deng on the story behind her piece “How to Order Chinese Food.”
  Arts
Brow Beat
Sept. 30 2014 10:48 AM One of Last Year’s Best Animated Shorts Is Finally Online for Free
  Technology
Future Tense
Sept. 30 2014 7:36 AM Almost Humane What sci-fi can teach us about our treatment of prisoners of war.
  Health & Science
Bad Astronomy
Sept. 30 2014 7:30 AM What Lurks Beneath the Methane Lakes of Titan?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.