Voting Rights and Democracy

John Roberts Just Told Congress How to Fix Bad Supreme Court Decisions

In a stunning 5-4 ruling issued last week in Allen v. Milligan, the Roberts Court, long a foe of the Voting Rights Act, upheld a key component of the VRA and struck down Alabama’s discriminatory Congressional maps. As much of the early coverage has stressed, Chief Justice John Roberts’ majority opinion in Milligan has huge implications for our multiracial democracy, forcefully reaffirming protections against vote dilution observers expected the court’s conservative super-majority to roll back and requiring mapmakers, in Alabama and elsewhere, to draw new majority-Black districts where Black voters have the opportunity to elect candidates of their choice.

Milligan is important in other ways that have barely received notice so far. Milligan’s constitutional holding—upholding the discriminatory results test to Section 2 of the VRA that Congress passed in 1982 as appropriate legislation to enforce the 15th Amendment—provides an important reaffirmation of broad congressional power to enforce rights-protecting constitutional provisions. More generally, it reaffirms the power of Congress to push back on restrictive Supreme Court rulings. Indeed, Milligan provides a template for Congress to respond to court rulings that strip away or gut bedrock fundamental rights.

To understand this facet of the court’s ruling, some background is essential. As Chief Justice Roberts’ opinion in Milligan explains, the results test was passed in response to the court’s 1980 decision in City of Mobile v. BoldenBolden upheld Mobile, Alabama’s at-large election system and, more importantly, reasoned that the 15th Amendment and the Voting Rights Act required proof of intentional racial discrimination. Discriminatory effects were not enough. As Roberts noted, this produced a flood of criticism that the court had hollowed out the right to vote free from racial discrimination and turned its back on prior rulings curbing vote dilution. In 1982, Congress responded by enacting the results test, which pointedly rejected Bolden’s discriminatory intent test. The results test, as its name suggests, targets discriminatory results, not discriminatory intent. This makes it a powerful tool to redress racial discrimination at the polls. The adoption of the results test provides a singular example of Congress pushing back against the Supreme Court when the justices undermine basic fundamental legal protections.

Congress enacted the results test using its power to enforce the right to vote free from racial discrimination. It was not until Reconstruction that the 13th, 14th, and 15th Amendments each gave Congress the power to “enforce” the Constitution’s new guarantees of freedom, equality, and voting rights, by “appropriate” legislation. This was a crucial innovation, reflecting the fact those who framed these amendments did not want to leave fundamental rights to the Supreme Court that decided in Dred Scott v. Sanford that Black people could never be citizens and had no rights worthy of respect. By giving Congress a broad power to fully realize the new constitutional guarantees, such as the voting rights guarantee contained in the 15th Amendment, the Reconstruction Framers gave Congress a tool to help ensure that these rights were actually enjoyed by all. As constitutional text and history show, “the remedy for the violation” of the 15th Amendment, like the remedies for the violation of the other Reconstruction Amendments, “was expressly not left to the courts. The remedy was legislative, because … the amendment itself provided that it shall be enforced by legislation on the part of Congress.” The enforcement power reflects that Congress, no less than the Supreme Court, has the duty to interpret and carry into effect the Constitution.

Chief Justice Roberts’ majority opinion in Milligan holds that the results test is constitutionally valid legislation to enforce the 15th Amendment, rebuffing Alabama’s radical plea to nullify the results test. His reasoning is brief, yet incredibly important. The Milligan majority accepts the governing doctrinal rule that the 15th Amendment requires a showing of purposeful discrimination, but explains that this is irrelevant to the scope of Congress’s enforcement power. Leaning on past precedent, Chief Justice Roberts’ opinion holds that Congress can prohibit voting policies and practices that result in discriminatory effects as “‘an appropriate method of promoting the purposes of the Fifteenth Amendment.’” Justice Brett Kavanaugh, in his concurring opinion, says something very similar.

The upshot of Milligan, then, is that the legislated Constitution is not limited by the adjudicated Constitution. In other words, Congress in exercising its enforcement power is not constrained by the Supreme Court’s interpretation of the 15th Amendment. Congress can adopt broader statutory guarantees to protect the right to vote free from discrimination. Chief Justice Roberts does not discuss the text and history of the 15th Amendment’s enforcement power, but interprets the law in line with it to produce a robust view of congressional enforcement authority.

The chief justice’s majority opinion is all the more important because the Supreme Court’s conservative majority has in the past taken a very crabbed view of Congress’s enforcement power, even though the original meaning of the enforcement power is incredibly clear and accepted by scholars across the ideological spectrum. In the last 25 years, beginning with City of Boerne v. Floresconservative jurists have repeatedly disavowed what the history shows: the Reconstruction Amendments gave Congress the lead role in enforcing their protections. Rather than follow the text and history of the enforcement power, the conservative wing of the Supreme Court has invented out of whole cloth a test for second-guessing Congress’s exercise of its power—the so-called “congruence and proportionality test”—ignoring the Reconstruction Framers’ structural choice to create a new, expansive congressional power to protect fundamental rights and make equal citizenship a reality.

Along these lines, in Shelby County v. Holder, Chief Justice Roberts wrote the court’s abominable 5-4 opinion holding that the 15th Amendment’s enforcement power did not permit Congress to extend the preclearance requirement of the act—one of the act’s most effective weapons against racial discrimination in voting—prompting Justice Ruth Bader Ginsburg to offer a history lesson in dissent: “The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States.” It is cause for celebration that Chief Justice Roberts’ majority opinion in Milligan, in stark contrast to Shelby County, adopts a constitutionally faithful understanding of the broad scope of Congress’s enforcement power. This will be crucial for future fights to come over Congress’s enforcement power.

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