Toward the end of June, major decisions from the U.S. Supreme Court come fast and furious, to the point where it’s difficult to do more than note each one and move on to the next.
An exception, though, is two important decisions on voting rights, both written by Chief Justice John Roberts. Together, they provide reassurance that representative democracy’s values, under assault as never before, have come back into focus for the nation’s highest court.
The more recent, Moore v. Harper, handed down Tuesday, put paid to the “independent state legislature” theory advanced by Republican lawmakers who contended, essentially, that they could draw whatever electoral maps they wanted, impervious to any court review, state or federal.
That contention had chilling implications since, in two cases decided in 2019, as Roberts wrote, “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
In the 6-3 decision, Roberts won the votes of two Donald Trump appointees, Brett Kavanaugh and Amy Coney Barrett, a sign he’s reasserting control after the disastrous Dobbs abortion decision by Samuel Alito that found Roberts in a 5-4 minority, isolated from his fellow Republican appointees.
Had the court given any credence to “independent legislatures,” it would have spawned even more extreme versions of gerrymandering. In North Carolina, the Republicans’ map would have likely given them 10 of the state’s 14 congressional seats, though voters divide almost evenly.
The earlier decision, Allen v. Milligan, involving Alabama maps, is even more interesting, because it shows the chief justice reevaluating his own work.
One of Roberts’ most famous, or notorious, decisions is Shelby County v. Holder, a 5-4 ruling in 2013 striking down major provisions of the 1965 Voting Rights Act. As enacted, it allowed black citizens to vote in large numbers throughout Southern states long denying them the franchise.
Roberts took aim at the “preclearance” provisions of Section 3 requiring federal Department of Justice advance approval for any election law changes – state, county or municipal. He wondered why, a half century later, whether such intrusive scrutiny was justified.
One never knows what justices think of the consequences of their own rulings, but Allen suggests rethinking on Roberts’ part.
The zeal with which Southern legislatures, virtually all Republican, began enacting potentially discriminatory and “vote suppression” measures was a sight to see.
When it came to another pillar of the Voting Rights Act, Section 2, which requires that black voters be represented in substantially equal terms, Roberts drew a firm line.
The map in question in Allen – which was in effect in the 2022 election and copied in other states – offered only one “majority black” district among seven in Alabama, even though blacks represent a third of the electorate.
In fact, the net effect was to hand Republicans five seats – exactly equal to their current majority in the House of Representatives. Those maps are now thrown out.
The Alabama challenge, like the one in North Carolina, was a test of whether a temporary majority from one party can result in rule changes to keep that party in power permanently, whether voters agree or not.
This isn’t a trivial concern. In neighboring New Hampshire, Democrats polled a majority of state Senate votes in 2022, yet won only 10 of 24 seats, thanks to a Republican-drawn map.
In Allen, Roberts won over only Kavanaugh, along with the three Democratic appointees, but it was enough to show that, when the chips are down on bedrock matters of representation, the court will not decide along strictly partisan lines.
Was that surprising? It depends on how you see the justices.
Alito and the longest-service justice, Clarence Thomas, can come across as angry, even bitter, as well as being ethically challenged thanks to flouting financial reporting norms.
Roberts is harder to pigeonhole. He clearly cares about the court’s legacy and is trying to maneuver himself back into the role of lead decider, “first among equals” as successful chief justices have always been.
In the North Carolina case, he took one of the key arguments of the plaintiffs, that an 1892 decision known as McPherson validated their theory that legislative prerogatives overrode all else. It involved, however, selection of “Electors” for president granted by the Constitution, not Congressional district lines, as Roberts pointed out.
And he quoted the conclusion of the McPherson decision’s author and his own predecessor, Chief Justice Melville Weston Fuller, that “the legislative power is the supreme power except as limited by the constitution of the State.”
Each branch of government has its own powers, and its own limits. That was the court’s message to Americans, who would do well to heed it.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910, will be published later this year. He welcomes comment at drooks@tds.net.
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