In an upside-down-day turn of events, earlier this week, Chief Justice John Roberts dissented in Merrill v. Milligan, a 5-4 decision that will allow Alabama to conduct its 2022 midterm election based on a congressional map that three federal judges ruled violates the Voting Rights Act. Roberts explained that he disagreed with the majority’s decision to stay the lower court ruling, which ordered the legislature to draw new maps, because that court “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
But no one should mistake Roberts, who has been crusading against the Voting Rights Act for four decades now, for a suddenly-repentant anti-racist voting rights enthusiast. His opinion shows that his intentions remain what they always have been, and that he’s on board with the majority’s goal of gutting voting rights protections even further than it already has. He just thinks his conservative colleagues should be a little smoother about it.
At stake in Merrill is the representation of Black Alabamians, who comprise 27 percent of the state’s population. A coalition of voters and interest groups challenged the new congressional map drawn by the Republican-controlled legislature, which “packed” many Black voters into one district and “cracked” the rest across the other six—a practice known as “vote dilution.” On Monday, five conservative justices decided it is totally fine and definitely legal for a historically disenfranchised group that makes up more than a quarter of the state’s population to be able to elect its preferred candidate in only one of seven districts. They also decided to grant certiorari in Merrill, and will hear oral argument in the case probably in the fall.
In an explanatory concurring opinion, Justice Brett Kavanaugh attempted to give some legitimacy to the one-paragraph majority opinion by claiming that staying the district court’s order “will allow this Court to decide the merits in an orderly fashion.” In Kavanaugh’s mind, the majority is protecting the public from the chaos that would surely ensue if Alabama’s legislature were forced to create a non-racist congressional map.
Roberts felt differently. In his dissent, he focused on the current standard for vote dilution claims under Thornburg v. Gingles, which requires voters of color to show, among other things, that they are a “sufficiently large and geographically compact” group to constitute a majority of a given district. And although he says the lower court applied Gingles correctly here, he noted that Gingles has created “considerable disagreement and uncertainty.” Thus, he agreed with the Court’s decision to grant certiorari, but would have allowed for the 2022 election to take place “in accord with the judgment of the District Court”—that is, under a redrawn, non-racist map that the majority couldn’t let stand.
Roberts left a trail of breadcrumbs in his dissent about how he might use Merrill to further weaken the Voting Rights Act. He cited concurrences in other VRA cases from Justice Sandra O’Connor and Justice Anthony Kennedy suggesting that focusing on “proportionality”—parity between a racial population and its political power—might itself be illegal under the VRA. The specter of “proportionality” has long incensed Roberts. As a staffer in President Ronald Reagan’s Department of Justice, Roberts argued that an expansive reading of Section 2, the VRA provision at issue in Merrill, would “establish a ‘right’ in racial and language minorities to electoral representation proportional to their population.” Vote dilution claims, he concluded, “should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.”
A provision of the VRA does state that Section 2 “does not establish a right to have members of a protected class elected in numbers equal to their proportion in the population.” But disclaiming the automatic right to exact proportionality is not at all a prohibition against using proportionality as one of multiple indicators of racist vote dilution. This is like asserting that a prohibition on racial quotas in college admissions means that colleges can’t consider race in the admissions process at all—which, of course, conservatives think, too.
Many legal journalists are dedicated to the work of upholding Roberts’s image as a reasonable moderate, and a 5-4 decision that features him siding with the Court’s liberal wing might feel like another valiant effort from an institutionalist trying to preserve the Court’s legitimacy. But Roberts’s dissent, which looks ahead to the chance to decide Merrill on the merits, doesn’t signal any fundamental disagreement with Alabama’s proposed map and its racial gerrymander. All it signals is mild disapproval of the alarmingly fast rate at which the Court’s other conservative extremists are dismantling core constitutional rights.
The Court’s endorsement of Alabama’s current map all but guarantees Republicans will win six of the seven seats in the 2022 midterms. But the Court’s eventual resolution of the questions Roberts raised on Monday will be impactful long after this election cycle is over. Roberts has been on a mission to dismantle voting protections for his entire career. If he indeed gets his way, this perhaps-surprising dissent will merely be an aberrant footnote.