Opinion | John Roberts Believes in an America That Doesn’t Exist

“Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Lyndon Johnson declared as he signed the Voting Rights Act on Aug. 6, 1965. “This act flows from a clear and simple wrong,” he continued. “Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.”

And so it did.

The Voting Rights Act put the final nail in the coffin of American apartheid and opened the door to something that looked worthy of the name democracy. It brought a flowering of political participation, not just in the states of the former Confederacy but throughout the country, as disadvantaged and disenfranchised Americans took advantage of new rules and protections to fight for and win political power. Latinos, Native Americans and other ethnic and linguistic minorities all won greater access and influence under the voting right act and its subsequent amendments and reauthorizations.

The change was most transformative, of course, for Black Americans, who seized the passage of the law to win local, state and federal representation at numbers not seen since Reconstruction. In 1964, there was just a handful of Black officeholders at any level of government in the South. By 1980, hundreds of Black Americans had won local and state office.

With that said, it took a major amendment to the Voting Rights Act, and a Supreme Court decision, to give Black Americans the opportunity to win more than token representation in Congress. In 1982, Congress reauthorized and amended the V.R.A. to combat disparate impact in voting and electoral outcomes. Four years later, in 1986, a unanimous Supreme Court declared that the Voting Rights Act forbade voting schemes that impaired the ability of “cohesive” groups of language or minority groups to “participate equally in the political process and to elect candidates of their choice.” Following this decision, states across the country — but especially in the South — used the 1990 census and redistricting to create majority-minority state legislative and congressional districts where Black voters could elevate Black lawmakers and officials to federal office.

At the 10-year anniversary of the act in 1975, there were 17 Black members of Congress, up from six in 1965. All of them served in the House of Representatives. At the 20-year anniversary in 1985, there were still only 20 Black Americans in the House (and none in the Senate). By 1995 however, there were 43 Black Americans serving as voting members of Congress, including one senator — Carol Moseley Braun of Illinois. This, even after the Democratic Party suffered its largest congressional defeat of the postwar era. Nonetheless, it would take another 20 years before Black American’s share of the House was approximate to their overall share of the population.

With its decision in Louisiana v. Callais last week, the Republican-appointed supermajority on the Supreme Court has delivered the latest in a string of decisions — stretching back to Shelby County v. Holder in 2013 — that have weakened the Voting Rights Act’s ability to stop racial discrimination in voting and to secure fair representation in both Congress and state legislatures. Led by Chief Justice John Roberts, the conservative justices have sidelined lawmakers, invented doctrines and ignored their own rules and procedures in a relentless drive to trim the Voting Rights Act beyond all recognition.

In this case, the court gave Republican-led states in the South the tools necessary to destroy majority-minority legislative districts under the guise of partisan gerrymandering, newly blessed by the court as a legitimate aim of state lawmakers. In concurring opinions, the conservatives say that this is a blow to equal protection — a step on the path to a “colorblind Constitution” that has put an end to a “disastrous misadventure” in voting rights jurisprudence.

As a tool, the majority-minority district functions as a prophylactic — an obstacle to politicians who might want to undermine or eliminate minority representation for invidious reasons. As long as those districts exist, these communities — formed by historical circumstance and shaped both by past discrimination and present-day disadvantage — will have some representation in their state legislatures and in Congress. It is less likely that they’ll be ignored, neglected and left to fend for themselves.

Descriptive representation, as it is known, is not perfect; race alone does not guarantee that a lawmaker will act in the interest of his or her community. But the record suggests that in places where racial polarization is the norm, where the legacy of Jim Crow segregation shapes the political and social landscape, the opportunity provided by a majority-minority district can mean the difference between some representation and none at all.

For the Roberts court, however, these districts are little more than a “racial entitlement,” to borrow a phrase from Justice Antonin Scalia. In the court’s view, you may have the right to vote, but you do not have the right to representation, and certainly no right to representation that supports “racial classification” — as if the government is the reason that Black Americans see themselves as a discrete and particular community — or outweighs a state’s purported right to engage in partisan gerrymandering.

In the name of a colorblind Constitution and the equal protection of the laws, then, the Supreme Court has given the green light to a gleeful attempt to end Black political representation at the state and federal level. And as long as there isn’t clear evidence of intentional discrimination — a standard that would have been difficult to prove at the height of Jim Crow, which rested on the same fiction of facial neutrality — it passes constitutional muster. In fact, lawmakers in Louisiana, Alabama, Tennessee and Mississippi are already planning special legislative sessions to apply the court’s ruling and erase the majority-minority districts in their states.

At a minimum, the 14th and 15th amendments to the Constitution were written, passed and ratified to end the subordination of Black Americans and ensure their representation in the political community. It is perverse that this Supreme Court has used both amendments to facilitate what might become the largest reduction in Black representation at the federal and state level since the end of Reconstruction and the “redemption” of the South. Words meant to secure the political equality of all Americans are being raised as weapons to deprive them of just that.

Here, we see the problem with conservative “colorblindness.” A constitution that doesn’t see color — a constitution that treats all classifications as one and the same in a country defined by its sordid history of racial subordination — is a constitution that cannot see group inequality. And worse, it is a constitution that reifies this inequality through its willful blindness to the plain realities of our society. Liberty for those who profit from the cruel legacies of our past, endless struggle for those crushed under their weight.

Speaking in 1883, after the Supreme Court nullified the Civil Rights Act of 1875, Frederick Douglass cried out for a court that would be as “true to the claims of humanity” as it “formerly was to the demands of slavery”: “I say again, fellow-citizens, O for a Supreme Court which shall be as true, as vigilant, as active, and exacting in maintaining laws enacted for the protection of human rights, as in other days was that Court for the destruction of human rights!”

Nearly a century later, Justice Thurgood Marshall, rebuking colleagues who would uphold racial disadvantage in voting as long as it was done with a patina of neutrality, warned the court that “manipulating doctrines and drawing improper distinctions under the Fourteenth and Fifteenth Amendments, as well as under Congress’ remedial legislation enforcing those amendments, makes this Court an accessory to the perpetuation of racial discrimination.”

One imagines that both Douglass and Marshall would say much the same if confronted with the handiwork of Roberts and his court.

It took more than half a century after Plessy v. Ferguson to get a court that was willing to enforce the Reconstruction amendments and use them to expand the substance of American freedom, not curtail it. For all our current setbacks, however, we live in a very different world than the past. We do not need to wait a lifetime for change.

If the Supreme Court is going to act as a partisan institution — as a super-legislature whose judgments override the decisions of voters on the thin basis of ideology — then the only path worth taking is to discipline and transform the court with all the tools Congress has at its disposal under the Constitution.

Beyond court reform, Americans have to reacquaint themselves with constitutional thinking — with the idea that we, the people, make constitutional meaning. To the extent that the Supreme Court claims broad authority to say what our Constitution means, it is in large part because we have given this authority to them through our indifference.

It may be that the first step in truly reining in the court is to remember that the republic — and the Constitution that brought it to life — is meant for us. It is ours to interpret and ours to transform.