Linda Greenhouse, Changing Tone, Urges CJ Roberts to Rise Above Politics in North Carolina Voting Case

Linda sees what I see, which is the prospect of an even more conservative Court for the next generation. And now rather than criticizing CJ Roberts’ positions on race and voting, she has a different argument:

He needs to make it clear that the Roberts court is not a tool of partisan politics, that the Supreme Court has not turned irrevocably away from protecting civil rights, including the right to vote. Three years ago, he was the author of the 5-to-4 decision in Shelby County v. Holder, which gutted the Voting Rights Act of 1965 on the ground that “things have changed dramatically” and the protections of the law were no longer needed. That was a dubious sentiment in 2013. In 2016, it reads like an insult to reality.

Does the chief justice understand this? The signs are not encouraging. In late summer, North Carolina asked the justices to put on hold an appeals court decision that invalidated the state’s new voter ID requirement and other election law changes that the appeals court found had been devised “with almost surgical precision” to suppress the African-American vote. The stay sought by the state would have put the law back into effect for Tuesday’s election.

Whether there are eight justices or nine, it takes five votes to grant a stay. The state fell one vote short. Those voting to grant the stay were Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Chief Justice Roberts. Usually, when a stay request fails to get five votes, the court simply announces “stay denied,” and those who voted to grant the motion remain silent. Why did these four announce themselves, gratuitously and contrary to custom, with voting rights and the Supreme Court itself squarely in the political spotlight? I wish I knew the answer, and I hope it wasn’t to send a signal to the Republican base of how important it was to fill the current vacancy with a conservative. Had Justice Scalia been alive and voting, the stay would have been granted.

This episode is not over. North Carolina’s formal appeal of the lower court’s decision, North Carolina v. North Carolina Conference of the N.A.A.C.P., is due at the court on Nov. 28. Sometime after the first of the year, the court will decide whether to hear it. The decision to hear a case, as opposed to the decision to grant a stay, takes only four votes, so the four dissenters have the power to grant North Carolina a hearing. The question then would be whether a ninth justice — a Trump justice — is seated in time for the argument and decision, and what the decision would be.

So Chief Justice Roberts has a choice of how to handle the gift of continued relevance that Tuesday’s election granted him.

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