John Roberts and Brett Kavanaugh saved the Voting Rights Act.

May 31, 2023

This is part of Opinionpalooza , Slate's coverage of the major decisions from the Supreme Court this June. We’re working to change the way the media covers the Supreme Court. Sign up for the pop-up newsletter to receive our latest updates through the month, and support our work when you join Slate Plus .

Slate's SCOTUS tracking newsletter.

Thanks for signing up! You can manage your newsletter subscriptions at any time.

The Supreme Court's 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama's congressional map violates the Voting Rights Act's ban on racial vote dilution, sends two clear messages. First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter). Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans. Roberts’ opinion for the court has a broader meaning that reaches far beyond this case: Red states cannot pressure the court into rewriting the VRA for no reason other than their shameless, brazen desire to elect more white Republicans.

Milligan revolves around Alabama's current congressional map, which GOP legislators drew after the 2020 census. Black residents make up nearly one-third of the state's population, but lawmakers gave them a majority in just one of the state's seven congressional districts. They did so by drawing a single, snaking district that captured most Black communities, then dispersing the remainder of Black voters throughout majority-white districts. The obvious purpose was to ensure that Black Alabamians could only have a real opportunity to elect one representative of their choice.

This tactic is plainly illegal under Section 2 of the VRA, which prohibits voting laws (including redistricting plans) that have a racially discriminatory effect, meaning a disparate impact on Black voters. In January 2022, a three-judge district court struck down the map, finding that it illegally diluted the votes of Black Alabamians. But the Supreme Court swiftly halted that decision on the shadow docket. Its order split 5–4 (with Kavanaugh in that majority), and though Roberts dissented, he objected only to the majority's use of the shadow docket to overhaul precedent, and was open to narrowing Section 2 in the future. After SCOTUS’ intervention, it seemed inevitable that the conservative supermajority would use Milligan to eviscerate what remains of the Voting Rights Act.

But it didn't! In fact, it did the opposite, vigorously reaffirming the ongoing importance and validity of this portion of the VRA in the face of ceaseless GOP attacks. Roberts’ opinion for the court on Thursday traced the history of racist voter suppression after the Civil War, leading up to the initial passage of the VRA in 1965. He explained how, in 1980, the Supreme Court held that the law barred only discriminatory intent, not effect—a decision that "produced an avalanche of criticism, both in the media and within the civil rights community." Roberts wrote that some lawmakers were wary that an "effects test" (which measured impact rather than intent) would require a "quota system" or "racial proportionality" in districting, raising equal protection concerns. And so Congress settled on a bipartisan, "hard-fought compromise," which amended Section 2 to require that the electoral process be "equally open to participation" by all racial groups.

What's shocking about Roberts’ history lesson is that, at the time, he was on the front lines of the fight against expanding the VRA to include an effects test. As a lawyer at Ronald Reagan's Department of Justice, he wrote about 25 memos in opposition of the new test and drafted op-eds on the topic for administration officials. Indeed, it is quite likely that Roberts actually ghostwrote one op-ed that he quoted in Milligan to illustrate the Justice Department's hostility. Once on the Supreme Court, of course, Roberts consistently voted to narrow the VRA in line with his earlier views. So Milligan represents a total about-face: For the first time ever, the chief justice has embraced the law as a legitimate means of safeguarding Black Americans’ equal participation in the electoral process.

What happened? We will debate that question for decades, but one answer leaps off the page: Alabama pushed too far, too fast, too transparently. The state wanted the court to either gut the VRA under the guise of "interpretation" or simply strike it down as unconstitutional. Roberts turned down both requests, and Kavanaugh went along with him. Notably, his analysis of Alabama's map itself is extremely brief, as if to illustrate that this case is not a close call. He explained that the court uses the "Gingles test" to identify a violation of Section 2. Under that test, a minority group must be large and compact enough to constitute a majority in one "reasonably configured" district; the group must be "politically cohesive," meaning its members generally share the same political preferences; and it must be able to demonstrate that white voters can consistently block its "preferred candidate." If all these conditions are met, the group must then show that elections are not "equally open" to racial minorities under a "totality of the circumstances."

Mark Joseph Stern

Progressive Judges May Have Found a Use for Clarence Thomas’ Terrible Guns Ruling

Read More

The district court found these conditions satisfied, and Roberts agreed, writing that the court "faithfully applied our precedents" to reach sound "legal conclusions." That conclusion needs little explanation based on the facts relayed above; it is painfully clear that Alabama's overarching goal was to minimize Black voters’ ability to elect their preferred representative. So the balance of Roberts’ opinion amounts to a complete demolition of Alabama's attempt to "remake our Section 2 jurisprudence anew." The state's GOP attorney general, he wrote, urged the court to adopt a new test that it called the "race-neutral benchmark." It involves using a computer to create a ton of maps that do not consider race, then calculating the "average number of majority-minority districts in the entire multi-million-map set." If the actual map aligns with the average simulated map, it cannot violate the VRA.

This is absurd, and Roberts said as much. First, it simply has zero basis in the text of Section 2, and was created out of whole cloth by conservative lawyers who want to maximize white voting power in their state. Second, as Justice Ketanji Brown Jackson pointed out at oral arguments, Congress wanted states to consider race when drawing districts to ensure that they did not lock out racial minorities. "Racial considerations" are appropriate, the chief justice explained, so long as they do not "predominate" map-drawing. Third, Alabama's test could, in practice, make it impossible for states to draw maps that comply with the VRA, because ostensibly "race-neutral" maps often have the effect of diluting Black Americans’ votes.

Finally, Alabama argued that the VRA's "effects test" is unconstitutional because it exceeds Congress’ power under the 14th and 15th Amendments. This theory loomed over the whole case, raising the distinct possibility that SCOTUS would end its campaign of death by a thousand cuts and finally bring down the hammer on the law. But Roberts spurned it in a single paragraph, writing that the court had upheld the law's constitutionality in the past, and had no interest in revisiting those precedents. That conclusion is a stunning turnabout for the chief justice that suggests he really has made peace with the law as it exists today.

The 1982 version of John Roberts (or even the 2013 version, and possibly the 2021 version) probably would have nodded his head in agreement with each of Alabama's propositions. The 2023 version rejected them wholesale. His 34-page opinion boils down to a warning against red states taking his vote for granted—which may explain why Kavanaugh signed on: to ally himself with the chief justice's performance of independence. Kavanaugh even penned a brief concurrence reiterating that the court's decision was compelled by precedent, which is curious since he cast the decisive vote in 2022 to preserve Alabama's illegal map through the midterm elections. Thursday's decision makes that vote all the more inexplicable, and it may well be that Kavanaugh changed his mind and sided against the state after the chief justice seized upon this case to demonstrate the court's refusal to be bullied by Alabama. (The decision also ensures that Democrats will pick up at least one congressional district in Alabama, and potentially several more in other red states with similarly unlawful maps.)

It is difficult to overstate the impact of Milligan on voting rights law. For several years now, many progressive attorneys have assumed that the VRA is pretty much dead, and the only question was when SCOTUS would deliver the final blow. Alabama wanted to play that role; it failed miserably. Justices Clarence Thomas’ dissent—joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—described the court's decision as a "disastrous misadventure." But the real disaster here was white Alabama Republicans’ crusade to obliterate the VRA based on arrogant certainty that they had five or six justices in their pocket. Their miscalculation wound up reaffirming Congress’ constitutional authority to combat state assaults on our multiracial democracy.