The Supreme Court’s decision Tuesday gutting a centerpiece of the 1965 Voting Rights Act was a long time coming, in large part due to Chief Justice John Roberts’ strongly held views on racial progress, which appeared to inform his 5-4 majority opinion.
“Nearly 50 years later, things have changed dramatically,” the chief justice wrote.
It’s a common theme permeating the chief’s jurisprudence in cases involving race: deep skepticism toward a continued governmental role in righting the wrongs of the past, be it on diversity in education or, in this case, special measures to snuff out voter discrimination.
In Roberts’ view, the racial disparities of the past are a historical fact. “But history did not end in 1965,” Roberts pointedly noted.
While proponents of the Voting Rights Act cite, in part, the 100 years of persistent discrimination between the passage of the 15th Amendment and the adoption of the Voting Rights Act, Roberts focused on the 40 years since the Voting Rights Act was passed in 1965 and Congress renewed it again in 2006.
“That history cannot be ignored,” Roberts admonished in the opinion. “During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained
political office in record numbers.”
Roberts doesn’t deny racism still exists. “Voting discrimination still exists; no one doubts that,” Roberts wrote Tuesday in Shelby County v. Holder. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.”
In the collapse of the monolithic, institutional racism of the Jim Crow South, Roberts see a change so fundamental that it puts the racial disparities of today in a different category entirely. So much has changed, in Roberts’ view, that it is needlessly discriminatory toward southern regions of the country for the federal government to take proactive measures to protect the rights of minorities, most notably blacks and Hispanics.
Roberts declared that the VRA has been so “immensely successful” at mitigating racism that it negates the need to continue the formula under Section 4 which specifies which state and local governments with a history of voter disenfranchisement require federal preclearance before changing their voting laws.
“Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides,” Roberts wrote.
Notably, Roberts also quoted a famous line from his previous majority opinion in 2009, laying the groundwork for Tuesday’s VRA ruling. “Things have changed in the South,” he wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
His critics — most notably Justice Ruth Bader Ginsburg, who wrote the four-justice dissent — retorted that voter registration and turnout don’t tell the full story, and that it defies common sense to overturn the part of the law that the Court majority credits with having been “immensely successful” at improve conditions for minority voters.
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg wrote in her fiery dissent, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Roberts admits that Section 4 was constitutional when the Voting Rights Act first passed but that its “decades-old data and eradicated practices” must be reassessed “in light of current conditions.”
Congress reauthorized the Voting Rights Act four times — most recently in 2006 for a period of 25 years. The pre-clearance formula, which involves the use of data from as far back as the 1960s and 1970s, had been re-evaluated each time before being renewed.
In lamenting the course taken by Roberts, Ginsburg in her dissent turns to Shakespeare and Santayana: “The Court ignores that ‘what’s past is prologue.’ … And “[t]hose who
cannot remember the past are condemned to repeat it.'”
