Once again this term, the Machiavellian in Chief Justice John Roberts was brought to light. With his judicial opinion in Shelby v. Holder, The Chief yet again revealed himself to be one of the shrewdest and most politically astute chief justices that the High Court has seen in a generation.
The case, which court watchers worried would dismantle the signature accomplishment of the Civil Rights movement, involved Shelby County, Alabama contesting the constitutionality of the two central provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance from the US Department of Justice before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of racial discrimination in voting.
Writing for the conservative wing of the court, Chief Justice Roberts ignored the overwhelming evidence pointing to the continued necessity of Section 4 and 5 of the Voting Rights Act, and declared that the coverage formula in Section 4 could not stand because “things have changed dramatically” and that the coverage formula that Congress renewed in 2006 was “based on 40-year-old facts that have no logical relationship to the present day.” The Chief Justice further supported the court’s decision by arguing that the “extraordinary impediments to voting” that were in place in the old South of the 1960’s, such as literacy tests, voter intimidation and poll taxes do not exist today.
However, a look at the harsh voter ID laws and the radical redistricting plans (which would disenfranchise minority voters) that passed in several southern state legislatures suggest that impediments to voting have not disappeared, but have simply evolved.
In the opinion, the Chief used census and election data to argue that Black voter registration and participation is now on par with that of White Americans, but he neglected to acknowledge that this progress was squarely a manifestation of the power and continued effectiveness of the Voting Rights Act. In fact, during the 2012 election season, the Voting Rights Act was particularly instrumental in blocking several state laws that would have drastically altered the very participation levels that the Chief Justice cited. According to an article in The New York Times, the Justice Department, and the Federal Courts cited Section 5 in blocking measures that were believed to “impose strict, unforgiving burdens” on the poor and on minority voters.
And of course, as expected, following the Supreme Courts’ decision in Shelby v. Holder, officials in Texas, North Carolina, Mississippi and Louisiana — all states previously covered by section 4 and 5 of the VRA — promptly resumed their plans to enforce voter ID laws and redistricting maps that had been previously blocked using Sections 4 and 5 the Voting Rights Act.
Legal scholars, news commentators, and civil rights activists have already dissected the Chief’s opinion to explain why the Court was misguided in the choice to invalidate these provisions of the statute. What is more interesting and less discussed about the opinion however, is how the Chief Justice maneuvered his reasoning to arrive at this decision. With all of the Court’s major rulings – Shelby v. Holder being no exception – it is patently clear that Roberts is keenly aware of the court’s perception and his own judicial legacy and takes both into consideration when crafting his decisions.
Striking down the constitutionality of Section 4 without deciding the constitutionality of Section 5 was a very shrewd choice on Roberts’s part. By doing so, he appeared to preserve the most sacred provision of the law (Section 5), which mandates coverage of areas with histories of discrimination, but he struck the provision that determines what those areas are. In essence, Section 5 – the most critical section – still stands, but it is now rendered unenforceable. This nuanced ruling made the decision seem more restrained and less radical than it actually is; after all, as some will undoubtedly argue that Justice Roberts did not invalidate Section 5 of the law. What matters here is that despite the fact that Section 5 lives, it cannot be used, because Section 4 is dead. Roberts accomplished his goal of weakening the federal statute while shielding the Court from the ensuing political controversy and backlash.
Additionally, Chief Justice Roberts repeatedly holds Congress responsible for the renewal of Section 4, saying that it is unfair for Congress to “rely simply on the past” to single out a few state and local governments for unequal treatment. With this argument, the Chief further tosses the responsibility and burden of this issue back to Congress by urging the elected branch to come up with a new formula for covering areas that should be subject to federal pre-clearance. Once again, this allows the Court to absolve itself of the responsibility and consequences of this decision.
The problem with Roberts’s approach is that it negates the political reality on the ground. Mired in gridlock and policy paralysis on many fronts, Congress is unlikely to pass a renewed coverage formula to enforce this voting rights provision. This is a fact of which the Chief was no doubt aware. In fact, it is highly unlikely that any congress could muster the courage to reinstate a coverage formula given the tumultuousness and toxicity that gripped Congress following the passage of the initial Voting Rights Act in 1965.
The Voting Rights Act of 1965 along with the Civil Rights Act of 1964 were so badly detested in the South, that these two laws facilitated the complete re-alignment of the American political parties, with most Southern Democrats switching their affiliation to the Republican Party. So now whenever voting rights advocates complain that the court allowed for voting injustices to resume, the court can wag its finger at Congress for failing to pass a new formula.
The Chief Justice’s work this term builds on his legacy, which has thus far been defined by a concerted and sustained effort to scale back on the gains of the Progressive Era — an era that for many was marked by an expansion of civil rights and liberties along with a strengthened federal government.
As demonstrated by his decision and opinion in Shelby v. Holder, this legacy that the chief is building is always very carefully executed and masked behind the façade of judicial restraint. Another example of the Chief’s façade this term can be found in the Chief’s action on another bedrock of the progressive era—Affirmative action. In Fisher v. University of Texas, the Chief, writing for the majority, avoided addressing the constitutionality of Affirmative Action. Instead, he remanded the case to the lower appellate court with instructions to employ a heightened standard of scrutiny in the facts. This once again gave the appearance of judicial restraint.
A catchy headline in The New York Times read: “Affirmative Action Survives Another Test”. In reality, however, affirmative action is barely breathing because the strict scrutiny standard that the chief’s opinion instructed, renders race considerations almost unusable, more to that, hardly anything ever survives the strict scrutiny standard of review.
The Chief’s decisions in the Voting Rights Case and the Affirmative Action Case this term demonstrate his thorough understanding of the importance of public support and good will toward the Supreme Court, but in the same vein, they also demonstrate that Chief Justice Robert’s court decisions are not just grounded in the principles of the law, they are just as much about matters of politics and public relations. Chief Justice Roberts has proved yet again, that he can arrive at a radical judicial decision that accomplishes his goal, while shielding the integrity of court from controversy and scrutiny that could come with it. As it has been said before, Chief Justice Roberts is playing chess, while we’re all still playing checkers.