Opinion: Remembering John Roberts’ Role in Enabling White Supremacist Voter Repression

Currently over 250 bills in at least 43 states are designed to restrict voting rights.

Georgia’s recent legislation, obviously, has taken center stage, spurring immediate protest and pressure from groups seeking to protect and expand enfranchisement for millions of voters, especially Black voters. After the fact, corporations headquartered in Georgia, such as Delta Airlines and Coca Cola, voiced opposition to the voter-suppression legislation. Texas, it seems will garner the media spotlight next.

The prevailing wisdom is that this tsunami of voter-suppression legislation has been motivated by the “big lie” that somehow the 2020 presidential election was somehow riddled with fraud and irregularities and that Donald Trump really won the election and had it stolen from him.

To be sure, the “big lie” and the fact that African Americans in Georgia, in particular, turned out to vote in high numbers to elect Joe Biden president and Raphael Warnock and John Ossoff to the Senate have triggered this racist backlash seeking to disenfranchise those voters who made democracy work in the very face of the virulent white supremacy that has historically disarmed democracy in America.

Let’s not forget, however, that while the big lie might have provided the impetus for this most recent white supremacist legislation aimed at repressing the Black vote, these racist attacks are largely enabled not by those extremists in white robes and hoods but rather by those extremists donning black robes, cloaked in the illusory dignity of the Supreme Court of the United States.

In 2013 in the Shelby County v. Holder case, the Supreme Court, led in this charge by Chief Justice John Roberts, paved the way for this wave of contemporary efforts to restrict voting rights by gutting key provisions of the 1965 Voting Rights Act which the Senate had ritualistically, if at times reluctantly, renewed multiple times.  2006 witnessed the most extensive hearings on the persistence of racial discrimination at the polls, before the Senate finally renewed the act.

None of this legislation in states like Georgia, Arizona, and Texas would even be possible if not for Roberts and his gang of robed right-wing racists.

The key provision struck down, Section 5, was that which required certain “covered” jurisdictions to obtain preclearance from the U.S. Attorney General before implementing any changes that impact voting. “Covered” jurisdictions included those with a documented history of racial discrimination in voting.  To be fair, the 2013 ruling did not altogether eliminate Section 5, for which Justice Clarence Thomas advocated, but rather declared that Congress’s determination of which jurisdictions were “covered” by preclearance regulations had to be done so using contemporary data, as the act had been renewed repeatedly on the basis of data from 1975. For all intents and purposes, though, this ruling was widely understood to have effectively extinguished preclearance regulations given the inevitable contentiousness in making these determinations in Congress.

Indeed, how often do we hear key Republican leaders insist that systemic racism is simply not a reality in today’s America, even as the George Floyd murder trial proceeds?

Former Attorney General William Barr was chief among those voices denying systemic racism is a problem in America. Robert O’Brien, a national security advisor to Trump, as well as Secretary of Housing and Urban Development Ben Carson and economic advisor Larry Kudlow made similar comments in the wake of Floyd’s murder by a police office last summer.  On a more local level, Senator Susan Collins has insisted systemic racism is not an issue in her home state of Maine.

Roberts’ opinion also relied on the sociological analysis that racism simply wasn’t severe enough in America to justify preclearance, calling it an “extraordinary” measure created to “address an extraordinary problem.”  He claimed “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”

One has to wonder what American reality Roberts is analyzing.

Indeed, he based his opinion in part on the fact that Black voter turnout had in fact been surpassing, on a percentage basis, white voter turnout in five of the six states originally covered by the 1965 act. Additionally, towns historically famous for racial violence and discrimination, Philadelphia, Mississippi and Selma, Alabama, had Black mayors when Roberts penned his decision.

Of course, Black mayors and high black voter turnout mean America is not racist!

Roberts’ facile and arguably bad-faith sociological analysis was archly and famously countered by the late Justice Ruth Bader Ginsburg, who wrote in her dissent:

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Well, the umbrella is gone, and it seems like it’s raining pretty heavily these days.

And it was Roberts who threw away the umbrella and enabled these rain-making state legislatures to unleash their racist storms.

Moreover, we have to be clear, the putatively serious-minded and brilliant Roberts clearly overstepped his bounds in this case, abusing his power as Chief Justice to fulfill his personal and long-standing agenda of overturning the Voting Rights Act, which he had been doggedly pursuing since 1981, as Ian Millhiser chronicled in Vox article last September.

The Fifteenth Amendment, Millhiser points out, is quite clear that overseeing regulations on voting is the province of Congress alone, stating that the right to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” giving Congress the “power to enforce this article by appropriate legislation.”

But John Roberts somehow believed it was his role to usurp Congress’s authority and make this call. He decided, based on what training and sociological research we don’t know, that racism simply wasn’t a problem in America anymore. 

His knowledge of the law, I guess, made him an expert sociologist.

Not.

Let’s be clear, those who continue to deny racism both in America’s history and present are engaging in and fueling racism, insisting the white supremacist status quo is just fine.

Well, to any unprejudiced eye, it should be clear the hard rain is falling.