Roberts’ Majority Opinion Preserving the Status Quo in Alabama Voting Rights Act Case Must Be Seen in Light of His Killing of Affirmative Action in Education in Today’s Students for Fair Admissions Case

A few weeks ago, after the Supreme Court preserved the (weak) status quo for Section 2 of the Voting Rights Act in Allen v. Milligan, I wrote in the NY Times:

The big mystery is why Chief Justice Roberts would write an opinion confirming that race-based remedies in politics are sometimes appropriate, given his role in 1982 as President Ronald Reagan’s point man opposing the expansion of Section 2, his 2013 opinion in Shelby County v. Holder striking down as unconstitutional another key part of the act and numerous recent decisions reading the act narrowly.

It’s possible that he had a change of heart, but it’s more likely that his institutionalist side kicked in….

But perhaps a more plausible answer for the chief justice’s blinking is that he could foresee the additional social upheaval and opprobrium that would have been generated against the Supreme Court had it ended significant minority representation in Congress and statehouses. Showing the court as an institution sometimes willing to side with minority plaintiffs could prove very important, especially if, as expected, Chief Justice Roberts and Justice Kavanaugh soon join the other conservative justices in rejecting race-based affirmative action in college admissions…

And sure enough, Roberts’ decision in Allen (and to some extent in Moore) allowed a number of stories to come out saying that the right-wing court was moderating, and even supporting voting rights for minority voters. All of that happened before today’s 6-3 decision in Students for Fair Admissions finding that use of race in college admissions generally violates the Equal Protection Clause of the Constitution.

I’m still working my way through today’s decision. But one cannot look at these two cases in isolation; there will be time to further weaken or kill Section 2 later on down the line should the “moderate” conservative Justices so desire.

Share this: