But last week, a closely divided court tempered such hopes, as Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh sided with the three liberal justices in that Alabama case, upholding a core precedent on one of the country’s most important civil rights laws, the Voting Rights Act. They deserve to be commended for — at least in this instance — restraining what has become a reckless, activist court.
The justices considered Alabama’s congressional map, which has hardly changed since the early 1990s despite population growth patterns that had rendered it increasingly unrepresentative; by the 2020 redistricting cycle, the imperative to draw a second majority-Black district was glaring. Line-drawers in Alabama’s overwhelmingly Republican legislature declined to do so, inviting court challenges.
Alternative maps containing a second Black-majority district were in some cases superior on the basis of traditional redistricting criteria, such as avoiding the splitting of county lines, than the one the state adopted. Under the court’s 1986 Thornburg v. Gingles ruling, there was little doubt that Alabama had violated the Voting Rights Act’s Section 2. But this court, with the help of Chief Justice Roberts, has dismantled the act’s protections in successive cases since 2013. The Alabama case appeared to be an opportunity for the Roberts court to eviscerate Gingles, too.
Alabama asked the court to do so, arguing that the justices should replace it with a new interpretation of the law that would make it easier for states to claim their electoral maps are legal, even if they appear to shortchange minority voters. But, writing for the majority, Chief Justice Roberts rejected Alabama’s invitation to rewrite precedent, declaring the state’s proposed new standard would defy the Voting Rights Act’s text and prove unworkable and complex.
This means courts will continue to examine real-world conditions to determine whether race has factored into the political process to an excessive degree — and unreasonably limited minority groups’ ability to elect candidates of their choosing. Even as it preserves important protections for minority voters, this process also reflects the congressional compromise that led to Section 2’s current text, which commands courts to consider the discriminatory effects voting rules and procedures might have.
Cynics might speculate that Chief Justice Roberts and Justice Kavanaugh are preparing the way to issue blisteringly conservative rulings later this month, perhaps on affirmative action. But their motives are unknowable and, in practice, irrelevant. Whether Chief Justice Roberts and Justice Kavanaugh would have repudiated Alabama’s maps absent long-established court precedent or whether they did so to convey that a conservative court will not dismantle every precedent when given an opportunity, the result is the same. And, either way, their action is laudable. Restraint is a judicial virtue this court has too often failed to embody.
Now, the question is whether this is a blip in the court’s otherwise sharp-right shift or a sign that there are finally five justices willing to slow, pause or halt the court’s campaign to upend legal precedents that have guided American society for generations.
