John Roberts is to blame for the legal mess in our country
Section 4, and Section 5 (which was supposed to protect Black voters) were deemed unnecessary. Section 4, and effectively Section 5–which aimed to protect Black voters–were supposedly unnecessary.
More than a decade later, it’s obvious that not only was Roberts out of his mind, but also that his doe-eyed ignorance about the level of racial progress since 1965 has actively enabled the country’s current backward slide into Jim Crow.
One need look no further than President Donald Trump’s anti-diversity, equity, and inclusion (DEI) crusade. Trump’s rogues gallery of incompetents is dismantling DEI programs across the federal governments, further entrenching the power of white men. In some cases, he is removing that power from overtly qualified people who don’t fit the new “white-is-right” mode of governing, and handing it to a cadre of right-wing television hosts, podcasters, and all-around cranks–not to mention the South African billionaire who doesn’t even go here, but who seems to think he is in charge of the entire federal government.
There’s certainly a lot of blame to go around for our descent into authoritarianism, but do you know who’s not getting enough shit for it? John Roberts. Contrary to what he claimed in Shelby, the situation has not changed drastically. The resegregation we are experiencing is unprecedented since Woodrow Wilson segregated the federal workplace in 1913. And had John Roberts left the Voting Rights Act alone, we might not find ourselves in this regressive backlash where voter suppression, racial gerrymandering, and relentless attacks on civil rights serve as a way for Christian nationalists and neo-fascists to entrench their power unchecked.
The Voting Rights Act of 1965 was the singular piece of legislation that finally forced the United States to stop pretending that Black people had the right to vote, while systematically blocking them at every turn. The 15th Amendment prohibited discrimination based on color, race or slavery. And the 19th Amendment was the favorite of white women, granting them the right of vote. The Voting Rights act (VRA), which was passed almost half a century later than the 19th Amendment fulfilled the intent of both the 15th Amendment and the 19th Amendment. Before the VRA, Black voters were kept from voting by racist tactics such as literacy tests, poll tax, and intimidation, especially in the South. The federal government put its foot down by passing the VRA. It banned these racist tactics, and forced states to follow the Constitution. Sections 4 & 5.
Section 5 of Voting Rights Act tasked the Department of Justice to babysit states & other jurisdictions that have a history of racist voter laws. The section 4 formula was used to determine if a jurisdiction’s history of discrimination against black people warranted that they be required to seek federal approval prior to making any changes in their election rules. Preclearance was the process used to stop these jurisdictions from adding new restrictions to voting in order to keep Black voters away. Guess what? The plan worked, at least for a time. Black voter registration and turnout skyrocketed: As the Nation reported, we had fewer than 500 Black elected officials in 1965, and by 2013 that number had ballooned to more than 10,500–including this country’s first Black president.
Roberts probably thought it made sense to go about gutting the VRA early in Barack Obama’s second term. Obama was Black, and he was President. Who would argue that racism was so prevalent that the VRA is still needed? Roberts wasn’t the first to try and obliterate the law. As soon as the VRA was passed, it became a conservative initiative. Roberts, a 26-year old man in 1981 — not even 20 years after the VRA’s passage — was already tired of it. Roberts, then a Supreme Court clerk, wanted to make sure Section 2 remained weak in 1980, when the Supreme Court weakened it in a case called Mobile v. Bolden. Roberts was a Supreme Court Clerk in 1980 when the Supreme Court weakened Section 2 in the case Mobile v. Bolden. He wanted to ensure that it remained that way. The sole disproportionate effect of a voting law or practice was not enough to prove racial bias. Roberts stated in a 1981 letter to Attorney General William French Smith that the “incorporation” of a test for effects would create a quota-like system by establishing a right to proportional representation on elected government bodies. (And conservatives are known to hate quotas. Roberts may have lost this particular battle but he won the war. Congress amended the VRA by banning voting laws that “result in the denial or abrogation of the right to vote of any U.S. citizen on the basis of race or colour.” This was to overturn the ruling of Mobile v. Bolden. Results were important. The impact of discrimination was important. Plaintiffs would no longer have to prove that lawmakers had a racially-discriminatory intention. Roberts continued to fight.
In the year 2005, Roberts, a young lawyer, was appointed Chief Justice of Supreme Court. Roberts’ long-running crusade to overturn the VRA was finally vindicated in 2013 when he wrote the majority opinion in Shelby County V. Holder. In Shelby, Roberts admitted that discrimination in voting still exists, but he balked at the notion that states with a history of racist voting tactics should be forced to get federal approval before being permitted to change their voting laws.
“Outside of the strictures of the supremacy clause,” he wrote, “states retain broad autonomy in structuring their governments and pursuing legislative objectives.”[Section 2]Roberts had decided that racial discrimination in voting was de minimus and could no longer support the incursion into states’ rights. Roberts had decided that racial discrimination in voting was de minimus and could no longer support the incursion into states’ rights. Greg Abbott, the then-Texas attorney general, said that the state’s voter identification laws, which were discriminatory enough that they had been blocked up to that point by federal preclearance, would go into effect immediately. This law was ultimately blocked by federal court. North Carolina also quickly passed a bill that disenfranchised Black voters to the point where the Fourth Circuit Court of Appeals said it “targeted African Americans with almost surgical precision.” North Carolina also quickly passed a bill that so disenfranchised Black voters that the Fourth Circuit Court of Appeals held it “targeted African Americans with almost surgical precision.”
We are in a period of resegregation where the prevailing attitude among conservatives is that only “competent white men,” as Under Secretary of State for Public Diplomacy Darren Beattie noted, should be in charge.
“Competent white men must be in charge if you want things to work,” he wrote on X, the social media network owned by Elon Musk, in October. Our entire national ideology is based on demoralizing white men and coddling women and minorities. Trump’s crusade against DEI in the federal government is not about bringing a meritocracy that had been missing to the federal administration–it is primarily about replacing qualified individuals with loyalists. It’s also about removing those Trump deems undesirable from the public life, and denying access to power. Black people. Women. LGBTQ+ people.
And to prevent people from having access to power, it is best to ensure they cannot vote for those who would give them that access. The ballot box is where political power begins. It begins with electing leaders that reflect the interests of minoritized communities, passing policies to benefit these communities and holding those in charge accountable if they do not deliver. The U.S., since its founding, has mastered the art of keeping out Black voters. While literacy tests and poll tax are no longer in use, extreme gerrymandering, voting place closures, voter list purges, as well as extreme gerrymandering, continue to make sure that Republicans don’t have to worry about the people who their policies hurt being held accountable. It would be easier to defeat politicians who support Trump’s anti DEI policies if Black voters were not kept away from the polls. Roberts claimed that racism, which led to the VRA, was mostly a thing in the past. However the post-Shelby barrage restrictive and discriminatory legislation that disenfranchises Black voters proves him wrong. Brennan Center reports that since Roberts gutted VRA in 2013, nearly 100 restrictive laws have been introduced by states. And many of these laws are in states with a history of racial voting discrimination–states that would be subject to preclearance if Roberts hadn’t poked a hole in the dam that was holding back the deluge of racist laws. John Roberts is to be thanked when you see Blacks standing in long lines for hours just to vote. John Roberts is to be thanked when line-warming laws prevent people from giving water and food out to people who are waiting in long lines at polling stations. So we have John Roberts to thank for that, too.
CORRECTION
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An earlier version of this article misstated which section of the Voting Rights Act was struck down in Shelby v. Holder. The Shelby v. Holder decision gutted Section 5 of the Voting Rights Act.
