Roberts, Kavanaugh Shock With Liberal Voting Rights Victory (1)

Chief Justice John Roberts and Justice Brett Kavanaugh unexpectedly joined their more liberal colleagues in a major US Supreme Court voting rights decision, delivering a rare win for progressives on the issue.

What constitutes victory for the liberal justices is relative in a 6-3 court dominated by Republican-appointed justices.

The court’s 5-4 ruling in Allen v. Milligan on Thursday left in place a nearly 40-year-old test for determining whether states have drawn voting lines in a way that disadvantages minority voters. In doing so, it rejected Alabama’s attempts to remake that test in a color-blind fashion.

The ruling “is preserving something rather than paving new, positive ground,” said Deuel Ross of the NAACP Legal Defense and Educational Fund, who argued the case on behalf of Black Alabamians.

But noting that the current court “has been hostile to voting rights, Ross said “in the context we’re in, it is a huge victory.”

Surprise Result

Because the court has shown a willingness to not only revisit but overturn its prior decisions, Thursday’s ruling shocked legal scholars.

In any other court, it would have been an ordinary decision, said Olatunde Johnson, a Columbia Law School professor who specializes in anti-discrimination and equality law.

“It’s just because the court has been showing its skepticism about the Voting Rights Act and has been willing to overturn precedent that we’re all surprised that it actually did what one would expect it to do,” she said.

Roberts has been the author of past decisions that have led to the “slow dismantling of the Voting Rights Act,” said William Roberts, of the Center for American Progress.

The chief justice wrote the 2013 decision in Shelby County v. Holder, which effectively gutted a section of the act that required certain states to get federal approval of voting rights changes. Roberts also joined Justice Samuel Alito’s majority 2021 in Brnovich v. Democratic National Committee, which limited the ability to challenge policies that make it harder for minorities to register under the act.

Roberts and Kavanaugh drew a line in the Alabama case, rejecting the state’s argument that Section 2 claims must be proven through color-blind benchmarks, CAP’s Roberts said.

In many ways the court did exactly what it should have done “in terms of being faithful to its past precedent but also to what Congress articulated are the purposes of Section 2 of the Voting Rights Act,” Johnson said.

“In some sense our surprise is just a product of a court that we had seen as willing to do pretty far-reaching revisiting of past opinions,” she said.

Johnson noted Roberts’ emphasis on the court’s precedent and Congressional intent in the majority ruling.

“It really reads like an institutional opinion in that sense, as being faithful to these institutional purposes and deference to Congress and deference to past precedent,” she said.

It’s unclear if Roberts was trying in his opinion to send a broader message to his colleagues about institutionalism and respecting past precedent. Johnson wasn’t willing to speculate.

“We have to see how the rest of the term unfolds,” she said.

E. Mark Braden, who filed a brief on behalf of the conservative Lawyers Democracy Fund in support of Alabama, wasn’t shocked by the court’s decision or that Roberts wrote it.

Braden, who is of counsel at Baker & Hostetler, called the court’s decision a pretty straightforward affirmation of the status quo.

“The folks arguing for the overrule were making, shall we say, bolder arguments and more limitations on the use of race in redistricting and they were bolder, apparently too bold for five members of the court,” he said.

On Guard

This isn’t the first time Roberts and Kavanaugh have joined forces with the liberal wing. The duo teamed up last term to give liberals wins in a handful of cases, including 5-4 victories allowing the Biden administration to carry out its vaccine mandate for healthcare workers and rescind Trump-era immigration policies.

But both Roberts and Kavanaugh have been against liberals in other high-profile areas, like environmental cases and abortion.

And while the court’s Milligan decision is an undeniable win for the left, it isn’t clear it will repeat itself in other blockbuster cases, including the pending ones on affirmative action.

In the voting rights case, Roberts emphasized the court’s long understanding of the proper test to apply and that “Congress has never disturbed our understanding.”

“The heart of these cases is not about the law as it exists,” Roberts said. “It is about Alabama’s attempt to remake our §2 jurisprudence anew.”

Kavanaugh wrote in his concurring opinion that the standard for overturning cases interpreting a statute was distinct from constitutional ones, which is the context for the affirmative action cases.

Stare decisis in the statutory context “is comparatively strict,” Kavanaugh said, suggesting that the court could more easily overturn its affirmative action decisions.

Progressives “still need to be on guard,” CAP’s Roberts said, saying there’s “still potential for the court to swing wildly at hard-fought victories.”