Supreme Court analysis: Why is John Roberts in a rush all of a sudden?

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Over his two decades on the Supreme Court, United States Chief Justice John Roberts had consistently played the long game when it comes to the court’s weakening of voting rights. That was until the past few weeks. With a series of major upheavals in the past month alone, Roberts has signaled that he is shifting to a two-minute offense. This change of velocity, heralded by rulings relating to Louisiana’s and Alabama’s redistricting, threatens to continually upend American elections and create incentives for maximum partisan warfare at exactly the wrong time. The question is why Roberts is suddenly playing like a man running out of time.

Let’s review ways in which the chief justice, and the court he has led, had shown remarkable patience in voting and election cases. When Roberts was a 26-year-old staffer in the Reagan administration in 1982, he led the charge against Congress expanding Section 2 of the Voting Rights Act to give minority voters a better chance to elect their candidates of choice to Congress, state legislatures, and local bodies. He believed that the new Section 2 would lead to proportional representation, rather than something more akin to a winner-take-all system, and strongly opposed what he termed racial quotas. He lost that battle over the scope of Section 2 when Congress passed the 1982 VRA amendments. But Roberts bode his time.

By 2006, when Congress on a bipartisan basis renewed the VRA yet again, Roberts had already been named chief justice by President George W. Bush. Voting rights opponents immediately challenged that part of the 2006 VRA renewal keeping in place for another 25 years Section 5 of the act, which required jurisdictions with a history of racial discrimination in voting to get federal approval before making changes to their voting rules. In 2009, when the issue first reached the Supreme Court, Roberts wrote an opinion in the Northwest Austin case that raised questions about Section 5’s continuing constitutionality but ultimately punted on the question. Instead of taking up the question directly, he gave Congress a chance to tweak Section 5’s formula for which states would be subject to preclearance. Congress did not act, and it took another four years, and another round of redistricting after the 2010 census, for Roberts to lead the court in the Shelby County v. Holder case to strike down the existing preclearance regime. In that opinion, Roberts not only assured readers that things had changed in the South; he pointed to Section 2 as an alternative means of providing protection to minority voters on a national basis.

A flurry of Section 2 cases came to the Supreme Court after Shelby County, and the court slowly whittled away the scope and force of the Voting Rights Act. In a 2021 case, Brnovich v. DNC, the court, under the guise of “interpreting” the legislation, sapped Section 2 of all of its strength as applied to challenges to voting practices like strict voter identification laws. Since Brnovich, voting rights lawyers have not been able to bring a single successful Section 2 voting practices case.

But even as it looked as if Section 2 was on borrowed time, the court sent repeated signals that it would, in fact, respect precedent when it came to protections against racial gerrymandering. In the 2018 case Rucho v. Common Cause, written by the chief justice, the court repeatedly differentiated between partisan gerrymandering, something it claimed the court could do nothing about, and racial gerrymandering, a subject in which Roberts acknowledged the court had a role to play. Roberts and Justice Brett Kavanaugh then joined with the court’s liberals in the 2023 case Allen v. Milligan in holding that Alabama’s failure to draw a second Black opportunity congressional district violated Section 2. Since a 1986 Supreme Court case, Thornburg v. Gingles, voting rights plaintiffs could successfully make out a Section 2 claim by showing that there was a large and concentrated group of minority voters whose preferred candidates were usually defeated by the white majority. In Milligan, Roberts faithfully applied the Gingles framework.

But last month, in Louisiana v. Callais, the court’s interpretation took a dramatic turn. The facts in Callais mirrored the facts in Milligan: Louisiana too, had failed to draw a second Black opportunity congressional district under conditions of racially polarized voting. Justice Samuel Alito had dissented in Milligan, and he essentially turned his dissent into a majority opinion in Callais, joined by all the conservative justices on the court, including Roberts and Kavanaugh. Alito inexplicably said they were not overturning Milligan or Gingles, but the new test he created will make it virtually impossible for minority plaintiffs to ever again prove a state’s liability under Section 2. He was a coward in stabbing Section 2 in the back rather than directly in the heart.

Two quick shadow docket rulings followed Callais in the past two weeks. First, the court agreed to issue its final judgment in Callais quickly, leapfrogging over the normal period when parties could seek Supreme Court rehearing. This ruling sent a signal that Louisiana had the green light to cancel its already ongoing primary election period and schedule a new House primary election using a map that eliminated a Black opportunity district. Then, in ongoing litigation out of Alabama, the court lifted a stay that was preventing the state from redrawing its congressional districts for the rest of the decade. The court’s terse order sending the Alabama cases back to lower courts gave no answer to Justice Sonia Sotomayor’s point in dissent that the lower court’s stay should remain in place because that court had found that Alabama violated the Constitution in intentionally discriminating against the state’s Black voters. Callais said nothing about the standard for constitutional vote dilution, and yet the court nonetheless gave Alabama the green light.

This rush to give Southern states a chance to gerrymander against minority interests in 2026 rather than 2028 or 2030 is all the more inscrutable given that the court has developed doctrine, which I coined in 2016 as the “Purcell principle”—after Purcell v. Gonzalez, a 2006 shadow docket case at the Supreme Court—counseling federal courts not to order changes in voting rules during the period close to an election. The court pointed to the risks of voter confusion and election administrator difficulties as reasons for federal courts to avoid last-minute changes.

The court had applied Purcell inconsistently across cases, eventually expanding its application to redistricting cases, including Milligan and Callais. But now the court appeared to adopt an anti-Purcell principle: The Supreme Court should intervene during imminent (or even ongoing) elections to favor states over voters.

Its rulings have predictably set off a mad scramble, in the middle of the election season, for states to redraw their maps to eliminate minority opportunity districts. Even worse, Callais makes partisan gerrymandering a defense to a Section 2 claim: In other words, when minority voters raise the claim that a redistricting plan has a discriminatory effect, the state can say that it was adopting new lines not to hurt Black voters, but to help Republicans (a nonsensical distinction in the South, where 90 percent of Black voters support Democrats). Every state now has an incentive to squeeze out as many seats for the dominant party as it can, hurting not just minority rights but representation for voters across the country.

The court did not have to proceed in such a hurried fashion. It could have waited to intervene in the Alabama case until the fall. It could have waited its typical 32 days for Callais to go into effect. It could have even held the case until the end of its term in late June or early July, when the primary season was over. It could have signaled, as the Supreme Court did in 1964’s Reynolds v. Sims, establishing the “one person, one vote” rule for state legislative districts, that because of “equitable considerations,” it would not be applying the new rule to the impending elections. It could have said that Purcell considerations militated against immediate change. Instead, the court’s conservatives have made an unusually mad dash toward radical change.

Roberts did not tell us why he is suddenly in a hurry, but none of the possibilities are good ones.

First, and most crassly, these decisions could have been motivated by partisanship. They almost certainly advantage Republicans in the race for control of Congress, because Republicans can do more gerrymandering than Democrats at this stage of the election season—and it’s easier for them to do the sort of gerrymandering the court blessed in Callais.

Second, even if not consciously biased in favor of Republicans, the conservative justices could be the victims of motivated reasoning: They see the risks of changing election rules at the last minute much more clearly when Republicans are hurt than when they are helped. Witness Alito, concurring in the shadow docket order to immediately issue its final judgment in Callais, noting that any delay would allow an unconstitutional map to be used in an upcoming election.

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Third, perhaps John Roberts sees the court as running out of time, and he wants to get many rulings in the books that change American politics in his preferred direction and forestall the move toward a multiracial democracy. He’s a 71-year-old chief justice now, not a 26-year-old staffer. The Supreme Court’s rulings in cases ranging from abortion to presidential immunity to the power of the government to fight climate change are growing increasingly unpopular. In the most important cases, the court is now splitting along not just ideological lines but party lines: All the conservative justices on the court have been appointed by Republican presidents, and all the liberals by Democrats.

Roberts well knows that Democrats and progressives are mobilizing against the court. The chief justice has complained about the public viewing the justices as political actors, but that is exactly what they are. People, including me, who had resisted Supreme Court reform, increasingly see it as the only way to save American democracy.

Whether or not the all-out partisan warfare that Roberts’ court has unleashed upon America in the middle of the election season was intended, it was foreseeable and inevitable. The Supreme Court in Roberts’ hands has become a chaos agent in elections. Whatever the rush, that will be one of his primary legacies.

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