John Roberts is slowly dismantling America

The chief justice arrived from central casting, in the guise of the midwestern dad next door, remembering the Indiana farmland of his boyhood and promising that he viewed the job through the eyes of another American civic religion: Baseball. John Roberts would simply be the umpire, calling balls and strikes, with no rooting interest — save the integrity of the Supreme Court.

This mythic nonsense has somehow persevered for more than two decades. During that time, Roberts has established himself as something more than just the chief justice. He is the most effective and successful Republican political operative of his generation.

It’s not only that the Roberts Court has enabled President Donald Trump’s muscular, extra-constitutional use of executive power, while also awarding him an entirely fictitious notion of presidential immunity that shields Trump from nearly all accountability. Roberts has also pushed the Constitution to the right and handed conservatives wins on abortion, guns, the environment, voting rights and the regulatory state that scarcely could have been imagined 20 years ago.

How has he gotten away with this, while maintaining his reputation as a genial institutionalist? The media and the legal community deserves some blame: By disguising hardball politics as constitutional theory, Roberts capitalized on longstanding deferential traditions and incentives within media court-watchers and academics. (The public, less easily impressed, has seen through this. The Court’s approval ratings have sunk to its lowest levels ever during Roberts’s tenure.)

Most importantly, Roberts is an extraordinarily patient bulldozer. He plays space-age chess with precision; he moves slowly, steadily, technically. Even when he rewrites precedent and invents his own doctrines, his steps have been plotted years in advance. Some colleagues may wish to go faster. Justices Clarence Thomas and Samuel Alito would toss the lobster into boiling water, oblivious to screams. Roberts turns up the heat so slowly it never notices it’s in a buttered roll.

The chief justice has a pattern. Whenever Roberts makes a dramatic move in a case involving high stakes for democracy, such as in Citizens United and Shelby County, he favors a baby step first. Call it the John Roberts two-step. He is such a master that this sometimes earns him praise as a consensus builder — even when the ultimate result is quite radical. It’s why an upcoming case should have everyone who cares about fair representation deeply concerned. The Roberts Court has already taken step one.

On the Roberts timetable

On Wednesday, the Roberts Court will hear Callais v. Louisiana, a case involving Section Two of the Voting Rights Act that is as complicated as it is consequential. The central question is whether it is constitutional to take race into account when it comes to redistricting. The Voting Rights Act — the most successful civil rights legislation in the nation’s history — requires majority-minority seats to be drawn when a minority group is large enough, geographically concentrated and faces racial vote dilution. This protects minority communities from being “cracked” and scattered across multiple districts that all elect a white representative. 

Section 2 is what prevents lawmakers in a Southern state, for example, from splintering Black cities or communities into multiple pieces and drawing a racial gerrymander that produces an all-white map. Without this protection, it’s entirely possible that minority representation would vanish across the South; since those districts tend to be represented by Black Democrats, this carries partisan implications as well.

The case arrives amidst unprecedented mid-decade gerrymandering nationwide — and pressure from the White House, ahead of the midterms, to maximize GOP seats in every state under Republican trifecta control. It’s easy to imagine states beyond Louisiana, including Alabama, Mississippi, Texas, Georgia, North Carolina and Tennessee, taking a fresh look at their maps if the Court finds the majority-minority seats unconstitutional.

Callais closely follows a similar case from Alabama, Allen v. Milligan, from 2022. In that case, Roberts, joined by Justice Brett Kavanaugh, surprised many by authoring a 5-4 decision that required Alabama to draw a second majority-minority congressional district. Alabama over-reached in this case, assuming that the conservative supermajority might be ready to act on “race neutrality.” Roberts wanted this done on his timetable, not Alabama’s. 

Here, Kavanaugh provided the decisive vote — and set up the next challenge in Callais. In his brief concurrence, he suggested that had Alabama made a different argument, it might have won him over. Then he helpfully explained what it would be for future litigants. Perhaps, Kavanaugh suggested, Section Two’s redistricting provisions might have an expiration date. His concurrence carried an eerie whiff of Shelby County. They echoed Roberts’ argument that things have changed in the South, and the age-old refrain of Supreme Court racial recidivists: Surely, these special protections must stop sometime.

“[E]ven if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to continue race-based redistricting cannot extend indefinitely into the future,” Kavanaugh wrote. (A bipartisan Congress did extend the Voting Rights Act nearly unanimously in 2006.) “But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”

At this time. A more easily devoured trail hasn’t been laid out since Hansel scattered breadcrumbs in the forest. It was a curious argument: A concurrence finding that Alabama legislators had passed an unconstitutional racially discriminatory map seems like an odd place to suggest that maybe the time had come to declare protections against official discrimination unnecessary. But then again, even in Shelby County, Roberts used a case that began when a small Alabama city redistricted a Black councilor out of office —on maps that had not been precleared with the government — as his vehicle to end preclearance and pronounce a new day of sunny racial harmony.

Louisiana recognized the invitation and quickly RSVP’d. Days after the court’s holding, Louisiana lawmakers, showing themselves slightly more strategic minded than their Alabama counterparts, cited the Kavanaugh concurrence as they fought against a new map at the Fifth Circuit. Meanwhile, as the court signaled how future protections might end, Roberts was feted by the New York Times as a savior of the Voting Rights Act and voting rights. 

That’s not calling balls and strikes. It’s delivering a World Series to a gambling cartel while a retinue of sports reporters cover a completely different — and wholly imaginary — ballgame.

False modesty and Citizens United

Roberts and Kavanaugh called the tune and knew the dance steps well. Roberts had perfected them in Citizens United and Shelby County. 

Citizens United required a halfway step as well. Two years before Roberts and Alito joined the court (in late 2005 and early 2006 respectively), a 5-4 decision in McConnell v. Federal Election Commission upheld nearly the entirety of the McCain-Feingold campaign finance reforms as constitutional. The conservative legal movement quietly laid the groundwork for a different decision, with a different majority on the court.

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That opportunity arrived in Wisconsin Right To Life, a narrower case that argued the blackout on outside political ads 60 days prior to an election violated the First Amendment rights of an anti-abortion group that wanted to air issue ads in a senate race. The law hadn’t changed. But the court had. The conservative legal movement that funded the case, and created the intellectual framework for them, had also helped place the judges who would decide them on the bench.

Roberts, two years after settling into the chief’s chair — and after emphasizing his respect for precedent before the Senate — would then eviscerate a four-year old precedent on a campaign finance question Congress had deemed central to American democracy. Roberts cast himself as a cautious moderate, even as he rewrote the rulebook. “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it,” he wrote. He insisted the Court was not overturning McConnell. “We have no occasion to revisit that determination today.”

His modesty was false. This was the first bite of the apple. The key word: Today. The decision sent the clear signal that five justices stood ready to take on the larger constitutional issues surrounding campaign finance. It didn’t require a mind reader to decode the chief’s message. Conservatives got busy preparing the case that would become Citizens United.

“A fine first chop of the log”

Roberts would call a similar tune when the court slowly put an end to preclearance, the most important enforcement mechanism within the Voting Rights Act.

On April 29, 2009, the 100th day of Barack Obama’s presidency, the court heard a case that hardly appeared momentous. A tiny neighborhood water district in the northwest corner of Austin, Texas, with an elected board sought to challenge preclearance, which required an extra set of eyes on any changes to voting laws or election procedures in the states with the most lengthy track records of bad behavior.

Two lower courts had disemboweled the district’s request to escape preclearance and affirmed the larger question of its constitutionality, citing a careful study of a 16,000-page congressional record built during the 2006 reauthorization of the Voting Rights Act and Supreme Court precedent.

Yet during oral arguments, the court’s GOP appointees looked ready to scuttle the nation’s most effective civil rights litigation. The chief justice, in no rush, negotiated a deal with the liberals instead: Preclearance could continue for now, but the water district could escape. But the price the chief justice extracted proved steep: The liberals needed to sign onto a Roberts-penned decision that faulted the preclearance formula for being old and outdated. And it included dicta — a nonbinding observation that can be cited as a “persuasive authority” in future litigation — that planted the seeds for preclearance’s demise.

The liberal justices believed they had won the day. They celebrated an imaginary victory. But Roberts had dug a trench and set a trap. He had suckered them into signing onto a much broader indictment aimed at the future viability of the Voting Rights Act. Not in this case, but the next one. 

This is where Roberts gave birth to a “fundamental principle of equal sovereignty” among states. The trouble with this principle is that it doesn’t exist. The cases he cited actually concern a very different principle, equal footing, which secured equality among newly admitted states. It has nothing to do with voting rights or any other rights. Roberts created it with an ellipsis that edited out the actual law and created what can only be seen as a deliberate misapplication of precedent.

The Voting Rights Act, Roberts wrote, “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” And here he cited the very first challenge to the law from 1966, South Carolina v. Katzenbach, when the court upheld its constitutionality. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.”

Except the actual case upheld the Voting Rights Act in the very sentence Roberts used to claim the opposite. How does he get away with turning up into down? He cut the clauses he didn’t like and called it law. Here’s the actual decision: “The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”

Four years later in Shelby County v. Holder, when Roberts and the court eviscerated preclearance in a 5-to-4 party line decision, he would cite his own made up dicta as law: “As we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.” 

Liberals either didn’t notice or underestimated his chutzpah and hubris. If they lacked the foresight to understand Roberts’s patient long game, or missed his invitation for another locality to challenge preclearance — this time, one that the court could not simply bail out — one person most certainly did: Edward Blum, the master matchmaker who found the Texas litigants, and would soon bring Shelby County to the court’s attention.

“That’s a fine first chop of the log,” Blum told reporters as he left the court that morning. 

Hollowing out the Voting Rights Act

The Roberts Court has been built with a majority of justices appointed by presidents who have lost the popular vote, affirmed by a Senate itself built on minority rule and with two members (Kavanaugh and Justice Amy Coney Barrett) confirmed under dubious circumstances. And whether gutting the Voting Rights Act, enshrining gerrymanders or allowing a tsunami of corporate money to drown our elections, the court’s project has been the determined dismantling of democracy and the birth of a nation where your rights, voice and access to the ballot box depend on where you live and, once again, the color of your skin. Our most antidemocratic institution seems determined on creating and enforcing antidemocratic results, while denying that it is an activist, political institution. 

Now, in Callais, with part one of the two-step complete, Roberts could deliver something he has worked for his entire career: Hollowing out the Voting Rights Act so that it still exists, but cannot act.

The big constitutional questions over Section 2 date back even earlier than Roberts’s days on the court. They go all the way back to his first job in Washington, as an aide in the Reagan Justice Department. Soon after being hired, Roberts — a twentysomething Indiana boy who grew up in a small town built for whites only, that resisted integration and advertised itself as a “highly restricted home community” — was handed the voting rights portfolio. The nation owed them gratitude; Roberts just wanted to declare the journey over. 

Job one: A battle over the 1982 reauthorization of the Voting Rights Act. A battle raged within the Reagan administration. Moderates in the White House wanted to avoid a fight over the law and embrace a congressional compromise. Roberts and hardliners at Justice wanted to draw a line between laws that had racial intent (still bad) or just racial effects (pretty much OK).

“Voting — that was John’s fight,” says Michael Carvin, the veteran conservative litigator and longtime Roberts friend, who came to Washington around the same time as the future chief. “Always John’s fight.”

He lost that one. Sen. Robert Dole, R-Kan.,crafted a compromise. Even a staunch segregationist like GOP South Carolina Sen. Strom Thurmond read the room and went along. And the DOJ warriors, like Roberts and others, including a young Alito, learned a valuable lesson in patience. When they arrived at the Supreme Court in 2005, the arguments they advanced in the 1980s would carry the day — not because things had changed in the South, but because the arena and the players shifted from Congress and the White House into the courts. That lesson? If you want to change the law, change the judges. In the courts, you didn’t need 60 senators to break a filibuster, 218 representatives or even the White House.

In the Supreme Court, five like-minded conservatives would be more than enough.

Now that they have six — plus the Congress and the White House — John Roberts has all he needs. He has slowly and patiently two-stepped his way to everything he ever wanted.

As for the rest of us? John Roberts delivered that message on C-SPAN in 2009, not long before Citizens United. “The most important thing for the public to understand is that we are not a political branch of government,” he said. “They don’t elect us. If they don’t like what we are doing, it’s more or less just too bad.”