Rare among the nation’s chief justices, John Roberts has found himself operating often as a swing vote in the middle, turning apparent conservative majorities into gossamer liberal victories on major issues like Obamacare and access to abortion.
To the consternation of the right, the chief justice appointed by President George W. Bush in 2005, a judge with an unblemished conservative resume, has gained an unlikely reputation as a moderating force on a court with a firmly conservative identity, steering it away from decisions with a party-line flavor that would overturn longstanding precedent.
So dramatic has been this shift that it is easy to forget the other John Roberts, whom no one will remember as a moderate.
That would be the chief justice whose jurisprudence has in recent years upended precedents on voting rights and enabled the current move across the South to roll back laws liberalizing access to the polls, especially for people of color. That John Roberts first showed his hand clearly when the Supreme Court granted Latino civil rights lawyers from Texas a rare and significant victory under the landmark Voting Rights Act more than two decades ago.
Not only did Roberts disagree with the majority that Texas lawmakers had wrongfully diluted the power of Latino voters in their aggressive redrawing of a district, but the court, he argued, should not have considered the racial makeup of that district at all.
“It is a sordid business,” Roberts wrote, “this divvying us up by race.”
Echoing that forceful dissent, the justice has, in case after case, argued that the government should not factor race into its policy decisions or actions, except in the most extraordinary of circumstances. His colorblind approach to the law, civil rights lawyers and legal experts say, has powered the decisions that have gutted the Voting Rights Act, making it harder to prevent racial discrimination at the ballot box and opening the floodgates to a wave of Republican-led restrictive voting laws across the country this year.
“Roberts . . . can go from one extreme to the other,” said Luis Vera, who serves as general counsel for the League of United Latin American Citizens and one of the lawyers who represented Latino civil rights organizations in the Texas redistricting case. “On voting rights, sometimes he is with us, most often he is against us.”
The Supreme Court of Roberts’s youth was at the center of the civil rights struggles of the 1950s and ‘60s. Under Chief Justice Earl Warren, it handed down landmark rulings that banned racial segregation in public schools, struck down state laws banning interracial marriage, and invoked the principle of “one person, one vote” to ensure redistricting did not disenfranchise Black voters.
But Roberts forged his legal path — and the views that would come to filter into his Supreme Court decisions on matters of race and voting — amid the conservative legal backlash that followed. In response to the progressive rulings of the Warren court, judges and lawyers pushed for narrow readings of antidiscrimination statutes, making it harder for plaintiffs to win cases, and displayed a hostility toward laws that they perceived give people of color racial preference.
Those who know Roberts say it is difficult to determine whether his approach to the law was molded by the conservative legal movement whose flowering coincided with his rise or whether his own views simply matched the moment.
Unlike most in his generation, shaped in a progressive mold by the civil rights era, the Watergate scandal, and the Vietnam War, Roberts had a set of well-established and staunch conservative philosophies when he arrived in Washington, D.C., as a young clerk for Supreme Court Justice William Rehnquist, said Paul Smith, a Georgetown law professor who clerked with him in those days for a different justice. The lone ultraconservative on the federal bench, Rehnquist was at the time leading the legal opposition to the civil rights wins of the 1960s, and Roberts, who grew up in a conservative family in Indiana, fit right in.
“They were very much in sync from the beginning,” Smith said.
The clerkship paved Roberts’s way into the Department of Justice during the Reagan administration. The young lawyer became a special assistant to Attorney General William French Smith, just as the agency was working to end the busing of Black students into white schools, investigating affirmative action programs, and dismantling quotas in employment and education meant to increase racial and ethnic parity and representation.
Soon, Roberts would find himself in the middle of a debate over the Voting Rights Act of 1965, one of the most successful laws to arise out of the civil rights era and one the Justice Department had a direct role in enforcing.
The act, signed after the bloody march for voting rights in Selma, Ala., banned literacy tests and discrimination in voting, and, critically, required any changes to the voting rules in places with legacies of deep voter disenfranchisement to first be cleared by the federal government. To determine which areas those were, Section 4 of the law established a “coverage formula” spanning any districts that in November 1964 had used outlawed tests or practices and where fewer than 50 percent of voters were registered or had cast a ballot in the 1964 presidential election.
With the act set to expire in 1982, Congress weighed whether to extend and amend it to allow plaintiffs to win their cases against voting practices by showing discriminatory “results” rather than prove discriminatory intent to disenfranchise, a much higher burden of proof.
As a powerful aide to the attorney general, Roberts drafted talking points and memos arguing the Reagan administration was not against extending the law itself but opposed the change, which it found “constitutionally suspect,” confusing, and a violation of states’ rights.
Under pressure, President Reagan ultimately signed the revised Voting Rights Act. But decades later, Roberts, from his perch on the Supreme Court, would begin chipping away at the law’s protections, using many of the same arguments he honed from his early days as a clerk.
Roberts first took aim at the Voting Rights Act in a 2009 opinion that unanimously granted a small utility district in Northwest Austin an exemption from its provisions. Roberts called the successes of the historic law “undeniable,” but he also argued that the formula to determine which places should be subject to pre-clearance by the Justice Department was outdated, pointing to registration rates for Black voters that in some areas outpaced those of their white counterparts.
“The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions,” 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.”
To many civil rights lawyers and activists, it came as no surprise, then, when in 2013 Roberts altogether invalidated the coverage formula in the 5-4 decision of Shelby County v. Holder. That majority opinion, written by Roberts, ultimately kept in place the provision permitting the federal government to continue its preapproval process, but it rendered it virtually unusable by throwing out the formula for which districts merited that extra scrutiny under Section 4.
“Voting discrimination still exists; no one doubts that,” he wrote. Yet, pointing to the court’s ruling in favor of the Austin utility district, he added: “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’ ”
Some lawyers argue the Shelby County decision was nuanced in that it left the door open for Congress to update the law and overturned a preapproval process that at the time only blocked a minuscule number of proposed voting changes. The Justice Department objected to more than 4 percent of voting changes in late 1960s; by the early 2000s, that number had dropped to less than 1 percent, most of which were redistricting measures, according to data compiled by Rick Pildes, constitutional law professor at the New York University School of Law.
But in practice, the ruling sent the signal that there was no longer preemptive federal oversight to protect the rights of voters and that one of the most important legislative acts in American history would no longer be nearly the obstacle to racially suspect voting rules as it had been.
The decision, which overruled Congress and decades of precedent, also marked a shift away from the judicial restraint and narrow rulings of the post-Warren-court era when it came to civil rights.
“Roberts has evolved over 40 years just as the conservative movement has changed,” said Smith, the Georgetown law professor. “The old conservative view was the less courts do, the better, but that is no longer the case.”
The impact of the Shelby ruling was immediate.
Within hours after it came down in 2013, Texas revived a voter ID law that the Supreme Court had previously blocked under the Voting Rights Act. Alabama unveiled its own photo ID law days later, one it had once refused to submit through the pre-clearance process. North Carolina would go on to approve its “monster law,” which required strict forms of voter ID, slashed early voting, and eliminated election practices to expand access to the ballot box. That included same-day registration and one of two “Souls to the Polls” Sundays, which are typically held before Election Day to encourage Black faith communities to vote.
Eight years after the Roberts court ruling, Congress has not yet updated the Voting Rights Act, leaving districts with a history of voter disenfranchisement to face far less oversight. And civil rights lawyers say the Shelby decision has paved the way for a new wave of Republican-led bills that have emerged amid former president Trump’s baseless allegations of rampant voter fraud and a stolen presidential election.
In previous rulings, Roberts “had made it clear that racism wasn’t a present issue anymore,” said Franita Tolson, a vice dean and law professor at the University of Southern California. Of Shelby, Tolson said, “I don’t think I realized how bad it was. It really opened the door to all these restrictions.”
Just this year, 18 states have passed 30 laws that could make it harder for people of color, poor people, and young people to vote, according to the Brennan Center for Justice at New York University Law School. It is difficult to say how many of these the earlier Voting Rights Act would have stopped because only those in states with records of voter discrimination would have undergone federal review and each would have received an individual analysis.
“But many of the restrictions that we are seeing enacted in the states right now bear a resemblance to those struck down by courts in the past [or that were] blocked by the pre-clearance process when it was in effect,” said Sean Morales-Doyle, the center’s acting director of the Democracy Program.
Civil rights lawyers looking to challenge the measures will need to convince a very skeptical Supreme Court. Just last month, the Roberts court upheld two restrictive voting rights laws in Arizona, one prohibiting out-of-precinct voting and another barring third parties from collecting and dropping off ballots. In arriving at its decision, the court outlined new “guideposts” that could make it harder for plaintiffs to prove discrimination under the Voting Rights Act.
“The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” the Supreme Court’s majority said. The words were written by Justice Samuel Alito, but sounded almost exactly like one of Roberts’s Reagan-era memos.
To the Texas civil rights lawyers and Democrats who were part of the state’s redistricting battles of the 2000s, there is a sense of déjà vu. Last month, Texas Democrats fled their state to prevent Republicans from reaching the quorum they needed to pass a sweeping restrictive voter bill. It was a similar move to the one they took in 2003, when they bolted for Oklahoma and New Mexico in an attempt to block Republicans from aggressively redrawing electoral lines.
The Supreme Court later upheld much of the GOP-charted map, throwing out Democratic plaintiffs’ claims of partisan gerrymandering. But it granted Latino civil rights organizations a key win under the Voting Rights Act, ruling for the first time in favor of a claim that one of the districts diluted Latino voters’ political strength on the basis of race and ethnicity — and spurring Roberts’s partial and blistering dissent.
“In order to reach the conclusion that he reached, the chief justice had to ignore the very strong, purposeful evidence of racial discrimination we put forward,” said Nina Perales, a vice president at the Mexican American Legal Defense and Educational Fund who argued the case before Roberts.
The legal landscape has grown only more daunting since then, lawmakers said, as Roberts’s view now appears to dominate the court’s conservative wing. “Over the years, the Supreme Court has protected voting rights less and less,” said Representative Joaquin Castro, who was a freshman legislator in the Texas House 18 years ago when he went to Oklahoma with fellow legislators on such short notice that he forgot to pack a suit.
At a House hearing last month, Texas Representative Senfronia Thompson, who fled to Oklahoma in 2003 and was defying the threat of arrest again by flying to Washington, D.C., pushed Congress to finally act on voting rights. Outside the Rayburn building, she said the Roberts rulings clashed with the reality of the real experience of Black people, who endured and sacrificed so much on the road to winning the right to vote.
“It looks like he’s looking in a silo at this,” said Thompson, who was born in the segregationist era of Jim Crow and whose grandparents were denied access to the ballot box under racist laws. “We are always struggling to hold on to something that is so fundamental, and that so many people in our society take for granted.”