Scott Gurvey's Public Offerings

John Roberts, Chief Justice of the United States, has achieved his life goal. With the Court’s ruling in Louisiana v. Callais, he has killed the Voting Rights Act. Roberts made the destruction of the VRA of 1965 his lifelong crusade. His opposition to the Act dates back to his days as a law clerk for then Associate Justice William Rehnquist. Rehnquist notoriously wrote a memo in 1952 stating, “I think Plessy v. Ferguson was right and should be re-affirmed.” Plessy was the infamous “separate but equal” case institutionalizing racism in public schools. It was overturned by Brown v. Board of Education in 1954.

Roberts first wrote, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” in 2007, Parents Involved in Community Schools v. Seattle School District No. 1. Since then, the quote has become a defining slogan for his judicial philosophy on race, later appearing in other landmark rulings like Students for Fair Admissions v. Harvard (2023), which ended affirmative action in university admissions.

The record of the Roberts Court is clear:

• Shelby County v. Holder (2013): Roberts authored the 5–4 majority opinion that effectively struck down Section 5, the “preclearance” requirement for states with a history of racial discrimination. He argued that the coverage formula was based on “decades-old data and eradicated practices” and that “our country has changed”.
• Brnovich v. Democratic National Committee (2021): Roberts joined Justice Alito’s majority opinion that made it harder for plaintiffs to win Section 2 “vote-denial” cases. The ruling introduced “guideposts,” such as the “usual burdens of voting,” that limit the Act’s ability to challenge neutral-looking rules like ballot-collection bans.
• Allen v. Milligan (2023): In a surprise to many legal observers, Roberts authored a 5–4 opinion upholding Section 2 to strike down Alabama’s congressional map for underrepresenting Black voters. He reaffirmed the Gingles precedent, stating that the law remains a vital tool against discriminatory redistricting.
• Louisiana v. Callais (2026): Most recently, the Court ruled 6–3 that creating two majority-Black districts in Louisiana violated the Equal Protection Clause. Critics argue this decision, supported by Roberts, may effectively signal the end of Section 2’s power to protect minority voting strength against partisan gerrymandering.

Roberts’s position is hard to argue with on its face. The problem is that his view of the world does not match reality. Roberts let Justice Samuel Alito do the dirty work of writing the opinion in Louisiana v. Callais. Alito used Roberts’s rose-colored glasses.

Alito wrote that “things have changed dramatically” in the South and used that as a basis for concluding that the relevant protections of the Voting Rights Act are no longer needed in the way they once were. Quite a stretch for someone who claims to be an “originalist.” The framing echoes language Roberts had used in Shelby County to gut Section 5 of the VRA — Roberts had written that “voter turnout and registration rates now approach parity” and that “blatantly discriminatory evasions of federal decrees are rare.” Research shows that ruling led to hundreds of new laws which had the effect of restricting voting.

This is reminiscent of a metaphor used by the late Justice Ruth Bader Ginsburg, dissenting in Shelby County. Ginsburg called that decision equivalent to “throwing away your umbrella in a rainstorm because you are not getting wet.”

What is striking here is not this view of the current state of race relations in the country. It is that this view is being used as a justification for the Court’s action at all. The conservative majority is in full lawmaking mode here, a position it hypocritically denies it assumes. In fact, in the time since the 2022 Dobbs decision on abortion, the conservatives have been rewriting precedent with abandon and placing themselves in what is traditionally the role of the elected branches.

Justice Elena Kagan argued in her Louisiana v. Callais dissent that the majority opinion renders Section 2 of the VRA “all but a dead letter.” Kagan wrote that Section 2 had been “repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress,” and that only Congress — not the Court — has the right to declare it no longer needed.

Alito insists the Court did not completely strike down section 2. But the Court significantly reworked the 40-year-old framework established in Thornburg v. Gingles, making three changes that will collectively make it much harder for voters of color to bring cases under Section 2 of the VRA. First, illustrative maps submitted by plaintiffs must meet all of a jurisdiction’s political objectives, including partisan goals. Second, evidence of racially polarized voting must control for partisan preferences. Third, in the “totality of circumstances” phase, plaintiffs must present strong evidence of present-day intentional racial discrimination — historical evidence of past discrimination carries much less weight.

I came of age during the turbulent 1960s with protests, sometimes violent, over the issues of Civil Rights, Woman’s Rights, and the war in Vietnam. Only one of three Americans alive today was alive then. Still, I am surprised to find so many students have failed to learn from the history of those days. Apparently, the conservatives on the Supreme Court have never learned or forgotten that history as well.

The Voting Rights Act was a major victory. It provided a mechanism to remedy the nearly total lack of Black Americans serving in Congress from the southern states, which had significant Black populations. Congress determined that was due to what were called Jim Crow laws, enacted in southern states, making it difficult for Blacks to vote in spite of the Fifteenth Amendment. Congress reauthorized the Act in 2006, extending it until 2031, finding it was still necessary. The vote in Congress was nearly unanimous.

The Court now substitutes its wishes for those of Congress, a pure exercise of judicial activism. In the immediate aftermath, Louisiana suspended its May 16 primary to allow the legislature to draw a new map, and Alabama filed an emergency motion seeking to stay a court order that had required it to maintain two majority-Black districts. A new era, call it Jim Crow 2.0, has arrived.

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