He completely blew the call on Section 2 of the Voting Rights Act; he got booed for it something awful, and tried to explain it with one the most tone-deaf eye-gouging opinions ever, and now he's tacked over in a whole different direction because (IMHO) he and his handlers can see the fact that the plutocracy agenda he's helping to promulgate is way more out of whack than they figured.
I'll take the "win", but holy fuck, Batman - are you really trying to tell me there's nothing of value in
Another smart guy doing stoopid things, still believing the Daddy State always knows best, but realizing that sometimes the shit work needs to be done where nobody can see it quite so well.
Jennifer Rubin nails it.
The Supreme Court’s ruling in Allen v. Milligan, holding that Alabama’s redistricting map violated Section 2 of the Voting Rights Act, shocked the legal world. This was the same court that eviscerated Section 2 in Brnovich v. Democratic National Committee, creating a “guideline” that would make most states’ plans impervious to challenge. Chief Justice John G. Roberts Jr., who held in the 2013 decision in Shelby County v. Holder that “things have changed dramatically” in the decades since the Voting Rights Act, wrote the majority opinion.
My how things have changed.
In striking down the preclearance process in Shelby, Roberts insisted that “no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Now, he staunchly defended a district-court ruling striking down districts gerrymandered to the detriment of Blacks and sang the praises of Section 2.
Roberts warned the risk of inequality “is greatest ‘where minority and majority voters consistently prefer different candidates’ and where minority voters are submerged in a majority voting population that ‘regularly defeat[s]’ their choices. … A district is not equally open, in other words, when minority voters face — unlike their majority peers — bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.”
The turnaround is even more dramatic when one considers that Roberts’s conservative colleagues, including Justice Brett M. Kavanaugh, stayed the district court’s ruling, a move that allowed Alabama (and other states) to proceed with discriminatory maps that could well have tilted the House to Republicans in 2022.
Roberts’s defenders might argue that he reads each case on its merits. But others have postulated that Roberts and the other conservative justices are setting us up for decisions in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, cases in which, civil rights groups fear, the court will invalidate race-conscious affirmative action programs. Still others surmise that Roberts has heard the rising anger at the court on everything from Dobbs v. Jackson Women’s Health Organization to Justice Clarence Thomas’s financial reporting scandal; the “institutionalist” Roberts, they posit, wants to soothe the public by showing he’s not a partisan hack, enlisting Kavanaugh, who concurred, to calm the waters.
If it is the latter, then this would hardly be the first time Roberts turned on a dime, not as a matter of jurisprudential analysis but apparently for political reasons — to assuage the public, which he knew would erupt if the court issued a radical decision out of step with public opinion. Recall his switch in position on the Affordable Care Act.
As detailed in “The Chief: The Life and Turbulent Times of Chief Justice John G. Roberts Jr.” by Joan Biskupic and in other reporting, Roberts was initially part of a 5-4 majority in National Federation of Independent Business v. Sebelius to strike down the law. But Roberts got cold feet. After assigning the majority to himself, he groped around for a way to preserve the law and avoid public outrage that would likely have erupted had the court struck down then-President Barack Obama’s greatest legislative achievement and the first national health-care plan for healthy, working-age adults. The resulting opinion, widely criticized as logically attenuated and downright weird, preserved the statute based on Congress’s taxing power. This was not jurisprudence but politics, as Roberts put his finger to the wind.
In Dobbs, Roberts struggled to avoid the political backlash he saw coming. In oral argument and in his concurrence, Roberts struggled to come up with a political compromise. Could the court protect abortions before 16 weeks? The legal grounds for such a compromise were shaky at best. His desperate effort to save the court from itself amounted to a failed attempt to bargain colleagues down from a risky, radical position. He was unsuccessful, but he surely saw the result: a political backlash of such force that it swamped the expected midterm red wave and drove the court’s approval to historic lows.
If political opinion “tester” explains Roberts’s past compromises and the shift from Shelby to Milligan, he should be viewed not so much as an institutionalist (who would protect the jurisprudential integrity of the court and insist on abiding by the highest ethical standards) but as an unprincipled politician, trying to prevent his radical colleagues from sinking the court and the Republican Party when he suspects blowback to decisions from the court’s right-wing majority.
In that sense, Roberts has become the worst sort of results-oriented judge. Rather than legal consistency, respect for precedent or even a judicial philosophy, he’s become the quintessential weather vane. How much can the public tolerate? How far must he let his conservative colleagues drift before the court falls into political oblivion?
Roberts’s transformation from the umpire calling balls and strikes to the stadium manager (how do we excite the fans but keep them from rioting?) underscores the need for a complete restructuring of the court. If the court’s decisions are now the result of radical ideology tempered only by Roberts’s political barometer, then it cannot be considered a court at all. It’s a purely political body. A political response — expanding the court — would be in order. At the very least, the justices should serve limited terms.
Though Section 2 has gotten a reprieve from the court, Roberts has given the game away. The court has not solved its credibility problem. To the contrary, it has made it worse.
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