Ten years ago, Chief Justice John Roberts authored the Supreme Court’s opinion in Shelby County v. Holder, which gutted a key feature of the Voting Rights Act (VRA). Relying on a principle of “equal sovereignty among the states” that he himself had invented, Roberts and the majority declared that Congress had acted unconstitutionally in re-authorizing the requirement that states and localities with a history of race discrimination in voting needed to pre-clear election law changes with the Justice Department without updating the list of covered jurisdictions. Since then, the pre-clearance requirement of Section 5 of the VRA has been effectively a dead letter because Republicans in Congress—who had previously joined in bipartisan VRA renewals—have refused to amend the VRA to update its coverage formula.
In the decade since Shelby County, the civil rights bar and its allies have been holding our collective breath, waiting for the other shoe to drop. We worried that it was only a matter of time before the Roberts Court would gut the remaining operative provision of the VRA—Section 2—which defines substantive violations and can be enforced through lawsuits by voters and the federal government.
Yesterday brought a welcome surprise. In Allen v. Milligan, Chief Justice Roberts again delivered the opinion of the Court, but this time he rejected a challenge to the VRA. Joined by the Court’s three Democratic appointees and (in nearly all of the opinion) Justice Brett Kavanaugh, the Chief Justice reaffirmed a key 37-year-old precedent—Thornburg v. Gingles—that allows VRA plaintiffs to sue to block legislative redistricting maps that have the effect of diluting minority voting strength. In normal circumstances, the reaffirmation of precedent would barely occasion more than a yawn, but given the speed with which the Supreme Court’s conservative super-majority has been remaking federal law in other contexts, the Milligan decision was hardly a foregone conclusion.
Whether yesterday’s ruling portends a broader moderation with respect to voting and race remains to be seen. For now, though, it is worth noting the ways in which the content and tone of the Chief Justice’s opinion in Milligan differ from what he has said and done in this area in the past.
Discriminatory Effect Versus Proportional Representation
As the lead opinion of Chief Justice Roberts in Milligan explains, the VRA was amended in response to the high Court’s 1980 ruling in City of Mobile v. Bolden, which construed an earlier version of the statutory text to apply only to intentional race discrimination. As amended, it also applies to election laws that are “imposed or applied . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Thus, drawing district lines that have the effect of making it harder for Black voters to participate effectively in elections is forbidden.
But effect as measured against what baseline? The VRA, as amended, also provides that it establishes no “right to have members of a protected class elected in numbers equal to their proportion in the population.”
Alabama—the subject of litigation in Milligan—is illustrative. The state’s population is about 27 percent Black, but Black voters comprise a majority in only one of the state’s seven congressional districts as drawn by the state legislature in response to the 2020 census. If there were a right to proportional representation, the state would be obligated to redraw the map to include two majority-Black districts, which would more closely approximate the statewide numbers.
In light of the statutory disclaimer, however, the plaintiffs did not argue that the percentages alone required an additional congressional district. Rather, they presented expert testimony that it would be relatively simple to redraw the map in a way that respects traditional districting criteria—including compactness, contiguity, and respect for intrastate political boundaries—while still producing two majority-Black districts. In addition, they pointed out (and no one disputed) that in Alabama voting patterns are highly polarized by race: whites vote overwhelmingly for Republicans and Blacks vote (even more) overwhelmingly for Democrats. Thus, unless Blacks comprise a majority or very-near-majority in a district, they will be systematically out-voted.
The three-judge district court credited the plaintiffs’ evidence, and the Supreme Court majority affirmed its fact findings and analysis. The plaintiffs were not saying that they were entitled to two congressional districts come hell or high water. If whites and Blacks were distributed throughout the state homogeneously, so that it would be impossible to draw district lines that respect traditional criteria while still producing even one majority-Black district, the Court said, the plaintiffs would be out of luck. But the combination of racially polarized voting and the possibility of a reasonable map with two Black-majority districts meant that the plaintiffs had satisfied the burden of proving discriminatory effect under the VRA as construed by Gingles.
In so holding, the majority rejected Alabama’s argument—accepted by Justice Clarence Thomas in dissent—that a discriminatory effect must be measured against a baseline of a map produced without taking account of race at all. The state’s experts had a computer run two million map-drawing exercises using only race-neutral traditional criteria but had not produced any two-Black-majority-district maps. Thus, according to Alabama and Justice Thomas (who was joined in whole by Justice Neil Gorsuch and in part by Justices Samuel Alito and Amy Coney Barrett), there was no racially discriminatory effect.
In response to that contention, the majority cited Gingles. The Chief Justice also noted that while two million sounds like a large number, in fact there are “trillions of trillions” of possible maps. Perhaps more fundamentally, as Justice Kavanaugh emphasized in a concurrence, a race-neutral baseline makes sense if the goal is to discern whether the Alabama legislature acted with illicit race-based intent but is not well suited to discerning racially discriminatory impact. For that task, and in light of Congress’s apparent acquiescence in Gingles, reasonable alternative maps, even if drawn with some attention to race, are acceptable.
Implications and Tone
Milligan construed a statute, but it has important constitutional overtones. Indeed, Justice Thomas said in dissent that construing the VRA to require race-conscious districting amounts to a government classification by race, which in turn should trigger strict—and for him meaning fatal—judicial scrutiny. In rejecting that objection, the majority expressly reaffirmed precedents that, “under certain circumstances,” allow “race-based redistricting as a remedy for state districting maps that violate §2” of the VRA.
Might that language provide a hint about how the Court will resolve the pending blockbuster cases involving the legality of race-based affirmative action at the University of North Carolina and Harvard? Court-watchers have thought all along that Chief Justice Roberts and Justice Kavanaugh were more likely than any of the other Republican appointees to defect from the strict view that the Constitution (and Title VI in the case of private actors like Harvard) require absolute “color-blindness.” Nothing in Milligan obligates either Roberts or Kavanaugh to approve affirmative action, but after yesterday’s decision, there is slightly greater reason to think they might do so.
The tone of Milligan also appears to depart from the tone of some prior Roberts opinions on race. In Shelby County, the Chief Justice’s majority opinion was dismissive of congressional findings and practically chided Congress for laziness in failing to update the list of jurisdictions covered by the pre-clearance requirement. By contrast, in Milligan, the Court treats Congress’s failure to amend the VRA to overrule or modify Gingles as a mark of sound stability in the law.
So too, in Shelby County, the Chief Justice seemed impatient with the VRA as an unnecessary relic. “Things have changed in the South,” he wrote. Perhaps in tacit recognition of how things have been changing back, the Milligan opinion states (in response to Justice Thomas) that while concerns about ballot access drove the enactment of the VRA, “history did not stop in 1960,” thus validating its application to race-based vote dilution through different tools.
To be clear, Milligan does not mean that Chief Justice Roberts or Justice Kavanaugh is becoming a liberal. As I wrote last year, Roberts looks “a fair bit like a man standing still while the landscape moves past him (and to the right).” But if even that much is true—and especially if Kavanaugh is standing beside Roberts as the four Justices to their right continue their journey—that is significant.
The dispute in Milligan is chiefly about baselines. If our baseline is the Warren Court, then Roberts and Kavanaugh are reactionaries. But if the baseline is set by the other Republican appointees to the current Court, then we can view their adherence to at least some civil rights precedents as (to mix my metaphors) a glass half full.
