Did the Supreme Court Just Recognize Systemic Racism?

Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal Justices in Allen v. Milligan to reject Alabama’s Congressional district mapping. Their verdict upheld the District Court’s decision ordering the Alabama legislature to create a second Black voting opportunity district. 

Black-led community and civil rights organizations had filed two lawsuits alleging that Alabama’s new congressional map perpetuated a long history of discrimination against Black voters by diluting their voting power. They could elect a candidate of their choice in only one of seven districts despite making up around 27 percent of the state’s voting-age population.

The Supreme Court’s 5 to 4 vote not to severely limit the Voting Rights Act surprised many court watchers. Congressmember Terri Sewell of Alabama told the progressive group Democracy Now, “Wow! What an amazing victory!” ACLU Voting Rights Project’s Senior staff attorney Davin Rosborough also told Democracy Now that there was “some surprise in the media and in the general public because of the direction the court has been going.” Separately, Nicholas Stephanopoulos, a voting rights expert at Harvard Law School, called the decision “an absolutely stunning development.” 

Past SCOTUS votes pointed to conservative justices eliminating the Voting Rights Act. Past votes by Roberts and Kavanaugh had shrunk the reach of VRA in protecting voting rights. Consequently, they were expected to join the other conservative justices to follow past SCOTUS decisions, eviscerating VRA’s usefulness.

In the Allen v. Milligan case before them, the last remaining effective tool, Section 2, which protected minorities’ voting access, could have been eliminated. However, the Act’s federal intervention powers required prior approval before a state adopted new voting rules applied to only nine States (including some additional counties) and was set to expire in 2031.

Kavanaugh’s only vote on a significant VRA case, Brnovich v. Democratic National Committee (2021), showed he was critical of the VRA. He and the other five conservative justices voted to overrule a Ninth Circuit Court decision that Arizona’s laws outlawing ballot collection and banning out-of-precinct voting violated Section 2 of the VRA.

Kavanaugh and the other four justices believed those laws did not discriminate against Native American, Latino, and Black voters. The Brenan Center argued that their finding would make it more difficult for voting rights advocates to challenge discriminatory voting laws, saying it “did significant damage to this vital civil rights law.”

Roberts joined Kavanaugh in the Brnovich case and wrote the far more intrusive Shelby County v. Holder (2013) decision before Kavanaugh joined the court. Roberts and the other conservative Supreme Court justices held that VRA’s coverage formula in Section 4(b) was unconstitutional. The formula was a list of voter burdens and voting trends from 1965 that still triggered VRA’s intervention powers, as spelled out in section 5. Without Section 4, there was no way to trigger Section 5, allowing the feds to require a state to receive permission to make voting changes that could be discriminatory. 

However, the Act’s federal intervention powers to require such prior approval applied to only nine states (including some additional counties) and was set to expire in 2031. Roberts concluded that Section 4 was outdated and no longer relevant. The coverage formula in section 4 had not changed over five decades.  Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, which recorded a lower voter registration or turnout.

Since VRA’s passage, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” 

Ginsburg wrote the dissenting opinion for the liberals using data to challenge Robert’s assumptions. She referred to a Congressional record showing more DOJ objections to prevent discriminatory changes in voting laws as time went on. For instance, the total objections from 1982 to 2004 compared to those from 1965 to 1882 showed a 27.6% increase.

This was evidence of the continued need to retain Section 4 to determine if voting changes resulted in discrimination. In the most recent period, DOJ blocked over 700 such changes using Section 4. 

Robert’s Allen position was foreshadowed in his Shelby County decision when he acknowledged that the Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting.

He quoted South Carolina v. Katzenbach, which ruled to retain VRA the year after it became law. Roberts lifted the line from their decision which said, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” 

Roberts strongly rejected Alabama’s effort to convince SCOTUS to rewrite its longstanding interpretation of section 2 of the Voting Rights Act. Roberts referenced US Code 42 from 1973 in writing the Shelby County decision. He noted that Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen . . . to vote on account of race or color,” 42 U.S.C. §1973(a), applies nationwide, is permanent, and is not at issue in this case.” 

Kavanaugh concurred with Robert’s opinion that Alabama’s redistricting plan violated Section 2 of the Voting Rights Act. He also wrote a separate opinion to emphasize that the prior case Thornburg v. Gingles (1986), applies to deciding Allen v. Milligan. 

Gingles recognized Section 2 as a statutory procedure, not a constitutional issue. Therefore, Alabama’s request to declare Section 2 unconstitutionally was irrelevant. Kavanaugh believed that Alabama needed to have Congress change VRA and not rely on SCOTUS to do so. His opinion stated, “In the past 37 years, however, Congress and the President have not disturbed Gingles, even as they have made other changes to the Voting Rights Act.” 

Both Roberts and Kavanaugh are on the same page agreeing that VRA outlaws voting practices that discriminate based on race. Kavanaugh narrowed his defense of VRA by requiring a legal effort from Congress to change it rather than the courts. Nevertheless, he did sign off on Robert’s overall argument. In doing so, he indicated that he would continue to support VRA.

He may even sway some of his conservative justices to take other narrow legal paths to recognize that America must treat all its citizens alike. However, his approach to making it a political decision leads to one of the significant issues looming nationally.

Does recognizing systemic racism in the Shelby County decision, tendered by the conservative justices, require Congressional and Presidential candidates to address this condition affecting our democracy?

The conservative justices’ reasoning for retaining Section 2 in the VRA lends credence to acknowledging that systemic racism exists in America. It’s a concept not in the public discourse when the earlier SCOTUS decisions were written.

In an interview on NPR, Ijeoma Oluo, author of So You Want To Talk About Race, said that framing racism has to be viewed as “systems that rely on subtle and not-so-subtle biases against people of color to disempower us and put us at risk.”

Cambridge Dictionary defines system racism as “policies and practices throughout a whole society that result in a continued unfair advantage to some people and unfair or harmful treatment of others based on race.”

The cases that Roberts and Kavanaugh cite to protect VRA from further cuts provide the descriptive language of a biased political system that propagates discriminative voting procedures based on race. The link between the definitions of systemic racism as a condition and the conditions these two justices cite are reflections of each other.

Coming down the road, both Congress and the federal courts will debate the existence of systemic racism. They will determine how legislation and SCOTUS decisions accept or reject proposals for adjusting laws in our democracy that harbor such built-in biases toward some of our citizens. 

When Republican Presidential candidate Tim Scott, the only black U.S. Senator, was asked in a Fox News interview if he believed there was systemic racism, he replied that it didn’t exist in America.

That will not be the last time presidential and congressional candidates will be asked that question. They could refer to the Supreme Court’s Allen v. Milligan opinion for an answer.