The Roberts Court’s Gutting of the Voting Rights Act Nears Completion

The six Republican-nominated Justices who dominate the Supreme Court have found an ingenious way to commemorate the 250th anniversary of American independence. Their April ruling in Louisiana v. Callais, and their June ruling in Allen v. Milligan, accepting the elimination of one of the two Alabama congressional seats where African Americans could prevail, have effectively eviscerated the Voting Rights Act of 1965 (VRA). That act and the Civil Rights Act of 1964 (CRA) are indisputably the two most important constitutional statutes Congress has ever adopted. Both passed with super-majorities, opposed primarily by Southern Democrats fighting a lost-cause campaign to preserve the monstrous edifice of racial segregation. The VRA is the more important of the two acts. It has been revised several times since 1965, through processes involving close deliberation and bipartisan cooperation. The last major revisions of the VRA that President George W. Bush signed in 2006 passed the House, 390-33, and the Senate, 98-0.

If there has been a long arc of justice in American history, these two landmark acts mark its apogee, forming the legal framework for the Second Reconstruction. From the vantage point of the bicentennials of 1976 (the Declaration of Independence) and 1987 (the Constitution), the effective implementation of these statutes led many Americans to believe that the most disturbing legacies of our national history had been overcome.

That feeling was not shared by Chief Justice John Roberts, however. He expressed his well-documented animus toward the VRA early in his career, while serving in Ronald Reagan’s Department of Justice. The Chief Justice knows how to play the “long game” of judicial strategy, and this campaign has been the longest game of all, with the Court repeatedly signaling with a judicial wink and nod how the VRA could be diminished and finally gutted.

Other writers, notably Rick Hasen and Richard Pildes, have better explained the nuances of this judicial campaign. But at this moment, when citizens should be reflecting on the constitutional ideas and aspirations of the Founding generation, a working historian who spends his waking hours in the 18th century, as I do, can contribute to a critique of the wretched flaws in Louisiana v. Callais and its derivative sequel in Allen v. Milligan.

From such a vantage point, the rationale that Justice Samuel Alito applied in the majority opinion in Callais can be faulted on two historical grounds. One involves how the revolutionary generation conceived of the essential defining characteristic of a representative assembly. The second reflected the disparaging views of the state legislatures that dominated the thinking of Framers of the Constitution—most notably James Madison—in 1787.

It was commonplace in 1776 to view the lower house of a popularly elected legislature as a “mirror,” “miniature,” “portrait,” or “transcript” of society. John Adams stated the point in his pamphlet, Thoughts on Government, which had as profound an effect on the debate over the adoption of new constitutions of government as Thomas Paine’s Common Sense had on the compelling rationale for declaring independence.

A “representative assembly,” Adams wrote,

should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this Assembly to do strict justice at all times, it should be an equal representation, or in other words, equal interest among the people should have equal interest in it. Great care should be taken to effect this.

The complementary objective, Adams concluded, was “to prevent unfair, partial, and corrupt elections.”

The underlying idea was that just a plan of representation would literally re-present the larger society within the government. Of course, the question of who would fit within that miniature or mirror remained open. Notions of political inclusion in 1776 and 1787 were far narrower than ours, and we remain conscious of that gap. But the ideal of what a representative assembly should be still holds. More important, the Voting Rights Act of 1965, along with its subsequent amendments, marked a fulfillment of that revolutionary ideal—an achievement we should be venerating, not interring, in our 250th anniversary moment.

For a long time, I wondered whether Adams was the innovator who first stated this ideal. But thanks to Eric Nelson of Harvard, I learned that the concept of representation by mirroring originated in the 1640s, amid the controversies between the House of Commons and the Stuart monarchy that led to the English Civil War and the execution of Charles I in 1649. Its main proponent was Henry Parker, a leading polemicist, who defended the claims of the House of Commons against the king’s authoritarian tendencies. The more closely the House of Commons resembled its electors, the stronger its claim that just rule required the consent of the governed.

No leap of imagination is needed to conclude that eliminating majority-minority congressional districts designed to ensure the election of candidates favored by African American voters violates this principle. Nor is it surprising that some Republican-controlled legislatures explicitly identified the African American representatives they intend to purge. The same could be said about the surgical decomposition of particular congressional districts. Take Tennessee’s ninth district, which represented the predominantly African-American city of Memphis. Its population has now been dispersed into impotent minorities across three surrounding districts.

The immediacy of these reactions demonstrates the absurdity of the underlying presupposition of Callais: that racial attitudes in the old Confederacy have utterly changed. But more important, the speed with which southern statehouses acted invokes a second legacy from the Revolutionary era. Article I, Section 4, of the Constitution, empowers state legislatures to regulate the “Times, Places and Manner” of conducting elections. That power is, however, subject to congressional review and alteration, and Congress can unilaterally set election rules for every state.

We know from Madison’s notes of debates that the Framers were hardly eager to enhance the authority of the state legislatures. When they first discussed the Elections Clause on August 9, 1787, two South Carolina delegates, John Rutledge and Charles Pinckney, argued that state legislatures needed no congressional supervision at all. It is not surprising that this objection came from the Palmetto State. Its legislature was controlled by a wealthy planter elite whose unitary interest was maintaining the system of chattel slavery that provided their wealth. The malapportionment of seats was one part of this strategy. As the historian Manisha Sinha has noted, district lines in revolutionary South Carolina were “incredibly lopsided, as the small lowcountry parishes were accorded the same representative weight as the much larger and more populous interior election districts.”

Madison rebutted the South Carolinians, and two of his points merit attention. He understood, first, that creating a popularly elected national legislature was necessarily experimental. Should delegations be elected statewide, with citizens voting for a whole slate, or in individual districts? Should citizens vote “by ballot or viva você”? With so many matters to resolve, Madison warned, “It was impossible to foresee all the abuses that might be made of the discretionary power.”

But how and why would these “abuses” occur? Although Madison never mentioned South Carolina by name, he likely regarded that state as a worst-case example. “Whenever the State Legislatures had a favorite measure to carry,” Madison continued, “they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States would produce a like inequality in their representation in the National Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter.”

In this 250th year of American independence, one cannot imagine a more prescient analysis of the current situation. If state legislatures have unchecked discretion to design congressional districts, as the majority in Callais avows, and apply it with complete disdain for the mirroring principle, they will violate the fundamental principle of representation to which the Founding generation was committed.

Madison’s analysis is on point for another reason. It is Congress, not the judiciary, which the Election Clause designates as the institution responsible for supervising the system. Judgments about representation are inherently political, and Congress reasons politically. The three Reconstruction amendments that the Roberts Court is bent on gutting resulted from intensely political deliberations that the nine robed justices could never replicate. The same can be said of the compromises that led to the passage and periodic revision of the Voting Rights Act. The only political factor that matters in Callais is the majority’s willful determination to overturn the VRA.

What, then, are we commemorating during the semiquincentennial? Most scholars agree that our republic had two founding moments: one tied to the revolutionary era, which culminated in the adoption of the Constitution; the other shaped by the Civil War and Reconstruction, which tragically ended with the enshrinement of Jim Crow in the 1890s. It will be a perverse celebration indeed if the Supreme Court’s nullification of the Thirteenth Amendment and the Voting Rights Act is the legacy of 2026. That the venerable African American congressman, James Clyburn, the South Carolina Democrat who did so much to promote Joe Biden’s presidential nomination in 2020, seems to have barely escaped a forced March redrawing of district lines provides another reminder of how the effects of Callais embody the ethos of the Confederacy and not the Second Founding.

That modest success, however, does not outweigh the greater harm the Supreme Court majority just inflicted in Allen v. Milligan. In a critical passage in its brief, unsigned opinion, the majority held that “While federal courts should not impose changes close to an election, States are free to decide for themselves whether last-minute changes to an election are in their best interests.” But whose “best interests” are being served here: the legitimate concerns of voters, many of whom will be confused by last-minute changes, or the partisan designs of a state legislature implementing its own white-supremacist agenda? The three-judge panel, whose ruling the Court overturned, included two jurists nominated by President Donald Trump, unequivocally concluded that racial discrimination was the transparent motive driving the elimination of Alabama’s second African-American district. And from the vantage point of 1787 and 1870, the responsibility for representing the collective interests of the individual states had nothing to do with the House of Representatives. That was the duty of the Senate.This is the brave new political world we welcome on the 250th anniversary of American independence. It is a world that John C. Calhoun, the avowed defender of slavery “as a positive good” and the leading theorist of nullification, would happily cherish.

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