It’s understandable that much of the reaction to the Milligan decision on the VRA is to be stunned that the Roberts Court would endorse the VRA claim and require Alabama to create a second ability-to-elect congressional district for black voters there. But as this Nina Totenberg story on the case for NPR notes, I had been telling journalists that I thought there was a pretty good chance a 5-4 Court would come out this way. We spoke on background the day before the decision and her piece then quotes my public comments yesterday on this blog:

Pildes, who had cautiously predicted the outcome in the case, said Thursday’s decision “is more than just an affirmation of the status quo … because this whole case is based on new technological developments that make it easier for challengers” to find ways to create viable districts to protect their rights under the Voting Rights Act.

I thought this mainly for three reasons:

1. While the Court might be inclined to cut back the scope of Section 2 in a case raising other challenges, Alabama’s case was an extremely weak one for doing that. There was no way for the Court to accept Alabama’s claims without a massive restructuring of Section 2 law — and partly for that reason, Alabama was all over the map in trying to explain what its theory was of the case.
2. I thought it was pretty clear C.J. Roberts was going to vote to affirm. Despite his dislike of the results test, I thought that for two reasons. First, his rejection of Alabama’s stay application and his accompanying statement strongly indicated that to me. He clearly stated that the lower-court decision was compelled by Gingles and that the extensive fact-finding in that decision strongly supported that conclusion. His statement was based on a careful reading of that opinion, and if he had been inclined to overturn it, he would have voted for the stay. Second, in 2006 he had dissented from a Justice Kennedy opinion that did cut back the scope of Section 2, with Roberts taking the side of Gingles and endorsing the position that the VRA plaintiffs should prevail. Indeed, this is the opinion in which Roberts said “It is a sordid business, this divvying us up by race” — and yet even so, he opposed modifying the essential Gingles structure.
3. That made J. Kavanaugh the likely deciding vote [this is a continuation of point 2, for those counting, but WordPress insists on inserting a new number]. His statement on the stay was almost completely about timing issues and said little about the VRA. I thought it was an open question which way he was leaning, but his questions at the oral argument then made me think it was more likely than not he would vote to affirm.
4. Third and finally, don’t underestimate the weight the extremely strong, fact-intensive three-judge court opinion had, written by well-respected Court of Appeals Judge Stanley Marcus. Two Trump appointed district judges joined that opinion. That was a sign this case would not necessarily generate a predictable ideological division within the Supreme Court.
5. Update: I meant to add what was surprising to me was how strongly written the opinion was. It could have been written by Justice Brennan, the author of the Gingles opinion in 2006. There is not a single begrudging line in the opinion. As Nick S. pointed out, the decision is a strong endorsement of Gingles in every respect.