Why Two Supreme Court Conservatives Just Saved The Voting Rights Act

This term, the most conservative Supreme Court in modern history had the opportunity to gut the last major section of the Voting Rights Act. They didn’t take it.

On Thursday, Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberal justices, ruling that Alabama’s congressional map likely violates Section 2 of the Voting Rights Act, which prohibits racially discriminatory voting practices or procedures. Last year, a panel of three federal judges threw out Alabama’s map, which was drawn by the Republican-controlled state legislature in 2021 with only one majority-Black district out of seven, because it was possible to draw a second majority-Black seat in a state with a population that is more than one-quarter Black. Now, Alabama will have to redraw its map to include a second predominantly Black district. 

Voting rights advocates were concerned that the Roberts court — which has a track record of narrowing the Voting Rights Act in most of the cases where the law has come up — would use the case as an opportunity to gut Section 2. Instead, 10 years after Roberts authored an opinion that eviscerated the Voting Rights Act’s other major section, the chief justice wrote that while Section 2 “may impermissibly elevate race in the allocation of political power within the States,” those concerns weren’t present in this case.

So, what happened? Here are two theories for why Roberts and Kavanaugh delivered such a surprise — and what they mean for how we should think about the conservative majority going forward.

Some conservative justices are worried about going too far

This is the realpolitik view of the Supreme Court’s new center, which includes two extremely conservative justices — Roberts and Kavanaugh — who often vote together and have signaled over the past few years that they care about the court’s ideological reputation. Under this theory, public perceptions of the court matter to at least some of the justices and factor into how quickly they’re willing to reshape the law on controversial issues.

To be clear, this is not an understanding of the Supreme Court that any of the justices would endorse. The high court is supposed to operate apart from politics, which means delivering unpopular opinions even in the face of public opposition. But over the years, political science research has indicated that the court does shift with the public mood, and the justices have stepped back from the brink at moments when it seemed like they were about to buck mainstream public opinion in a major way.

And this year, the conservative justices are facing major headwinds. The court has been moving steadily to the right for decades, but a paper published last year by social scientists Stephen Jessee, Neil Malhotra and Maya Sen indicates that it took a sharp conservative turn after the appointment of Justice Amy Coney Barrett in 2020, and Democrats — who usually tend to underestimate the court’s rightward tilt — actually noticed. Then, of course, a five-justice majority overruled Roe v. Wade last summer, a highly unpopular move that reshaped the contours of the midterm elections and created a historically wide partisan split in perceptions of the court. Last September, a solid majority (58 percent) of Americans disapproved of the court in Gallup’s tracking polling — which is a potentially scary shift for someone like Roberts, given that majorities or near-majorities of Americans have approved of the court’s performance for the entirety of his tenure as chief justice.

Roberts reportedly lobbied his fellow conservatives to preserve the constitutional right to abortion, and he criticized the decision to chuck it, saying that he would have preferred a “more measured course.” Thursday’s ruling is perhaps an even more dramatic about-face for a justice who spent the early part of his career trying to weaken the VRA. It’s possible that Republicans’ arguments in the case simply failed to convince even Roberts. But the Dobbs ruling arguably also made it riskier for the conservatives to issue more rulings that narrow or get rid of existing rights: Polling conducted last summer by PerryUndem, a nonpartisan research firm, found that many American voters saw a connection between the overturning of the constitutional right to abortion and their own personal rights and freedoms. 

Republicans are overplaying their hand with the court’s conservative majority

It’s also possible that Republicans in this instance simply asked for too much. The Supreme Court’s current majority is historically conservative, but that doesn’t mean the justices are willing to go along with Republicans’ reasoning in every single case. 

Yes, the Roberts court has gained a reputation for being highly conservative on voting rights — and that reputation is deserved. As I wrote last fall when this case was being argued, only one of the seven VRA-related cases the court heard in the Roberts era has had a liberal outcome. But as New York University law professor and voting rights expert Richard Pildes told me when I called him for that story, the Republicans who were seeking to preserve Alabama’s map were asking for a radical departure from the way Section 2 has traditionally been interpreted. Up until now, courts have basically concluded that the VRA requires states to prioritize race among other considerations when they draw district lines. In this case, Alabama Republicans were arguing that prioritizing race over other traditional considerations — like avoiding crossing town or county borders — is actually discriminatory. Part of their argument was that as it’s currently enforced, the nation’s seminal law designed to protect and enforce voting rights for racial minorities violates the Constitution’s guarantee of equal protection under the law.

By existing standards, Alabama’s map is a clear Section 2 violation, according to another voting rights expert, University of Southern California law professor Franita Tolson. The lower court judges — including two appeals court judges appointed by former President Donald Trump — certainly thought this was the case. And during the oral argument, the conservative justices didn’t seem especially receptive to a “race-neutral” reading of the Voting Rights Act.

So while Republicans have been aggressively pushing the envelope as the court’s balance shifted right, this case may have gone too far. That doesn’t mean the court isn’t conservative — or even that its major decisions aren’t more aligned with the median Republican than the median American, which that recent study indicated — but it is a signal that the court won’t rubber-stamp literally anything Republicans ask for.

The presence of Justice Ketanji Brown Jackson, who was vocally skeptical of the idea that the VRA violates the 14th Amendment during the oral argument, may also have been a factor. There’s some limited evidence that greater racial diversity on appeals court panels results in more liberal rulings on issues related to race. The perspective of Jackson, an appointee of President Biden who became the first Black woman to serve on the Supreme Court when she was sworn in last summer, may have helped convince Roberts and Kavanaugh. 

Today’s ruling was surprising, but it underscores something we’ve known for a while: The Supreme Court is historically conservative, but it’s still sometimes unpredictable, and the most conservative voices on the court don’t always get their way. Other moves by the court this term have underscored that — for example, the court in April paused a lower-court judge’s ruling that would have taken a commonly used abortion drug off the market while a lawsuit over the legality of the drug’s approval process played out in the courts. Only the court’s two most conservative justices, Samuel Alito and Clarence Thomas, dissented from that order.
But the term is far from over. There are many high-profile cases left to be decided, including two cases that could determine the fate of affirmative action in higher education, and it’s always a mistake to draw conclusions about the direction of the court based on one ruling. Today’s ruling shows that the Supreme Court’s conservatives won’t always side with Republicans, even on issues — like voting rights — where they’ve consistently leaned right. An occasional unexpected outcome, however, is not a trend. We’ll need to see how the rest of this term’s cases play out before we can start to say anything definitive about what this ruling means for the trajectory of the court going forward.

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