The Roberts Court shows its true partisan colors

The Supreme Court’s Republican-appointed majority would have you think that its latest gerrymandering decision is a mere tweak to the legal rules governing political map-drawing. No doubt hoping for mild headlines, the court’s 6-3 opinion framed its holding as hewing to “the plain text” of the Voting Rights Act and “consistent with” the Fifteenth Amendment’s prohibition against racial discrimination in voting. In compliance with these two guideposts, Justice Samuel Alito’s majority opinion styles itself as a humble “update.”

Don’t be fooled. This is a counter-revolution. Section 2 of the 1965 Voting Rights Act requires that people of color have an equal opportunity to elect representatives of their choice. Wednesday’s decision effectively strikes down Section 2—at least what this Supreme Court had left of it—and takes the country back to the dark days when Black and brown voters in many states cast meaningless ballots, having been diluted and gerrymandered into powerlessness. In the decades since the Voting Rights Act, southern states have sent Black representatives to Congress, state legislatures, and local political bodies because this seminal civil rights law demanded that minority voters have an equal voice in the political process. Congress has repeatedly defended and continued these protections. On Wednesday, a court majority watered them right down to nothing.

In her dissent, Justice Elena Kagan laid out the stakes of what the court had just done, and repeatedly chided the majority for downplaying the gravity of its holding. Wednesday’s decision in Louisiana v. Callais “could destroy most of the majority minority districts that in the past 40 years the Voting Rights Act created,” Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The decision has “thus laid the groundwork for the largest reduction in minority representation since the era following Reconstruction. Under cover of ‘updat[ing]’ and ‘realign[ing]’ this greatest of statutes, the majority makes a nullity of Section 2 and threatens a half-century’s worth of gains in voting equality.”

This case is not the first that the Roberts Court has taken to dismantle the Voting Rights Act, but it may be the last. It is likely the final nail in its coffin, and the lid is now so firmly in place that it is improbable that any plaintiff will be able to pry it open and avail themselves of the law’s protections. This court, under Chief Justice John Roberts, began its assassination of the law in 2013, striking down the requirement that jurisdictions with a history of discrimination get pre-clearance for new maps and changes in voting rules. The court went on to make it harder to win cases against discriminatory voting laws that block minority voters from casting their ballots. And in a related line of cases, the justices green lit partisan gerrymandering and made it increasingly difficult to prove racially discriminatory map-drawing had occurred. The Callais decision marries these two lines of cases, destroying the Voting Rights Act while elevating permission to conductpartisan gerrymandering above minority voting rights. 

The dissent opens with a hypothetical that illustrates the import of the majority’s decision: Imagine a state with a history of virulent racial discrimination, in which Black and white voters prefer different political parties. The population is 90 percent white, save a single county, shaped like a circle, which is 90 percent Black. The Black voters elect a representative of their choice because they belong to one congressional district. Then “the state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts,” Kagan writes. “The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice. Election after election, Black citizens’ votes are, by every practical measure, wasted.”

Congress, under the Voting Rights Act, forbid this kind of racial vote dilution. Under Callais, the Roberts Court brings it back. Indeed, if the white majority in the dissent’s hypothetical seeks to hand all their state’s congressional districts to Republicans, then the Black population cannot have a meaningful vote because they would choose a Democrat. “The majority straight-facedly holds that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders,” Kagan writes. “For how else, the majority reasons, can we preserve the authority of States to engage in this practice than by stripping minority citizens of their rights to an equal political process? And with that, the majority as much as invites States to embark on a new round of partisan gerrymanders.” Notably, the majority does not dispute this. Alito does not counter that this hypothetical district—the paradigmatic Section 2 district—would survive Wednesday’s opinion. It’s a damning silence that tacitly admits just how sweeping his decision is. 

Partisan gerrymandering, the court’s preferred tool for dismantling Section 2 of the Voting Rights Act, is not a constitutionally protected practice. In fact, it’s long been viewed as a big problem. As recently as 2017, the Supreme Court appeared poised to limit extreme partisan gerrymandering and its obviously corrosive impact on democracy and individual rights. But two years later, after Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh, the court swung in the other direction. In Rucho v. Common Cause, Chief Justice John Roberts ruled that federal courts could not adjudicate partisan gerrymandering claims because they were ill-equipped for the task. Rucho “did not pretend that partisan gerrymanders were something in need of safeguarding,” Kagan recalled in her Callais dissent. “To the contrary, the Court conceded that they were ‘incompatible with democratic principles’ and ‘lead to results that reasonably seem unjust.’” But, seven years later, the majority has transformed partisan gerrymandering into a weapon with which to extinguish the political voice of minority voters.

Partisan gerrymandering—indeed any partisan concern that a legislature might raise—can now perform the same function that Jim Crow tactics did prior to the Voting Rights Act. There’s no need to resurrect poll taxes or literacy tests when legislatures can simply draw maps to exclude minority’s preferred candidate from winning. Against any accusations of discrimination against minority voters, legislators can simply invoke a political motive and prevail. The Voting Rights Act was “born of the literal blood of Union soldiers and civil rights marchers,” Kagan wrote. Callais not only tramples the Voting Rights Act, it creates the scaffolding upon which to build a new discriminatory political system.

Defenders of the Roberts Court chafe at the accusation by liberal critics that it is guided by partisan concerns rather than faithful application of the law. But on Wednesday, the Republican appointees literally elevated partisan concerns above the individual and collective rights of minority voters. They ruled that helping your preferred political party trumps the rights of Black and brown citizens. It’s hard to imagine a less justifiable decision—or a more precise representation of this court’s agenda.