Analysis Law and Policy

Changing the Rules to Rig the Game: Our Supreme Court’s Hypocrisy on Civil Rights

Leah Aden

The Roberts Court has been more than willing to make sweeping interventions to roll back civil rights. And now that Justice Brett Kavanaugh has been confirmed, this will almost certainly become more pronounced.

During his Senate confirmation hearings in 2005, Chief Justice John Roberts memorably compared himself to a baseball umpire. As a jurist, he said, his job is simply “to call balls and strikes,” not to determine the outcome of a case based on his personal preferences.

In the more than decade since, the conservative justices on the U.S. Supreme Court have often purported to engage in this vision of judicial restraint, seeking to cast themselves as people guided above all by their reluctance to second-guess lower courts as fact-finders, Congress as the Court’s co-equal branch in government, or the “sovereignty” of states.

But the effects of many of the conservative wing’s rulings have been anything but neutral, especially where the civil rights of our country’s most vulnerable individuals are concerned. Several recent cases expose the inconsistency—one might even say the hypocrisy—with which the Roberts Court applies its self-professed commitment to judicial modesty. Where established law protects civil rights, the Roberts Court has been more than willing to make sweeping interventions to roll back vital democratic protections. Now that Justice Brett Kavanaugh has been confirmed, this trend will almost certainly become more pronounced in the years to come.

Consider the Court’s approach to two recent voting rights cases. In Husted v. A. Philip Randolph Institute, decided earlier this summer, the Court upheld Ohio’s aggressive attempt to purge inactive voters from its rolls. (My organization, the NAACP Legal Defense Fund (LDF), filed a friend of the court brief opposing the state’s efforts.) Under Ohio’s “supplemental process,” individuals who don’t vote within a two-year period and who do not respond to a notice from election officials sent because of their voting inactivity are purged from the state’s rolls, a mechanism that turns the right to vote into a “use it or lose it” proposition. Officials claim that the purges protect election integrity and prevent non-existent voter fraud, when they in fact achieve the opposite: suppressing voting rights, particularly for voters who are low-income, elderly, and of color. The majority in Husted ignored this practical reality. Instead, it offered a narrow reading of the National Voter Registration and Help America Vote acts—laws that Congress expressly passed decades earlier to make it easier for individuals to vote—despite claiming that it had “no authority to second-guess Congress.” With this profession of judicial modesty, the Husted majority gave other states and localities permission to imitate Ohio’s disturbing assault on equal access to the ballot box.

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And yet in the most important voting rights case in recent memory, 2013’s Shelby County v. Holder, the Court’s conservative majority did exactly what it claimed it could not do in Husted: It second-guessed Congress. At stake was Section 5 of the Voting Rights Act of 1965, which for five decades required some of the jurisdictions with the worst history of voting discrimination to clear any changes to their voting laws with the Justice Department or a three-judge federal court before they could put them in effect. Congress had reauthorized Section 5 four times over four decades—most recently in 2006 by a 98-0 vote in the Senate and 390-33 vote in the House—based on a congressional record of more than 15,000 pages showing the section’s effectiveness and justifying its continuing need. Still, the Roberts Court immobilized it, with disastrous results. As soon as the Court handed down the decision, several states and the localities within them with records of racially motivated voter suppression—including Texas and North Carolina—enacted laws designed to and having the effect of making it harder for voters of color to participate in our democracy. LDF, which had represented Black leaders in Shelby County defending the constitutionality of Section 5, continues to document the voter suppression that runs rampant in jurisdictions where the provision had formerly effectively protected Black voters and other voters of color.

These are hardly the only recent decisions in which the Roberts Court has contradicted itself in pursuit of its anti-civil rights agenda. In the high-profile Masterpiece Cakeshop v. ColoradoCivil Rights Commission case, which the Court also decided earlier this year, it ruled that Colorado’s Civil Rights Commission violated the religious liberty of a baker who refused to sell a cake to a same-sex couple, in part because the Court gave great weight to statements that an individual commissioner made that the Court perceived as biased against the baker. But that same month in Abbott v. Perez, the Court disregarded the mosaic of evidence of discrimination—including statements by multiple legislative members and data showing flaws in Texas’ legislative process—acknowledged by a trial court in determining that the Texas legislature intentionally adopted redistricting plans that were purposefully designed to suppress the voting power of Latino and Black Texas voters. (LDF filed friend of the court briefs in Masterpiece and Abbott). In one term, then, the Robert Court overruled a state’s efforts to protect LGBTQ rights while greenlighting the ability of states to engage in manipulative redistricting to harm communities of color.

What links all of these decisions is not a transcendent theory of judicial restraint. Rather, it is an ideological hostility to the equal civil rights of people of color, LGBTQ people, and other communities most vulnerable to discrimination, even though that equality is enshrined in our Constitution.

Chief Justice Roberts and his colleagues want to be viewed as umpires who impartially call constitutional balls and strikes. But when it comes to cases involving the civil rights of vulnerable individuals, they change the rules and rig the game.

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