caricature by DonkeyHotey.
In his Mother Jones exploration of Roberts's work to wreck the VRA in the 1980s, Adam Serwer leaves the door open half a smidgen for the possibility the chief justice might change his mind when making his decision on Shelby County (Alabama) v. Holder.
To reiterate what's at issue: Section 5 of the Voting Rights Act requires that all or parts of 16 states, most of them in the South, must pre-clear any changes in their voting laws to ensure they do not discriminate against minorities. Those jurisdictions were chosen in the original act or added in amendments because they had long histories of such discrimination against African Americans and, in some regions, against American Indians and Latinos. Civil rights activists and an overwhelming majority of Congress as of 2006 (when the act was renewed) believed the provisions of Section 5 were still needed then. Foes argue that it's obsolete or, at the very least, should be expanded to cover all the states. Universal coverage is something critics say could kill the effectiveness of the act by stretching the resources of the Department of Justice and federal courts too thin.
In 1981, President Ronald Reagan took the stance that the provisions of Section 5 "impose[d] burdens unequally upon different parts of the nation." Activists, Serwer writes, didn't want merely to renew the law, they wanted to strengthen it with a rewrite in light of a 1980 Supreme Court decision that had diluted it by requiring prosecutors to prove intentional discrimination. Intentional or not, all discrimination in voting practices should be forbidden, the activists said:
Roberts wasn't having it. Voting rights violations, according to one memo he helped draft in 1981, "should not be too easy to prove since they provide a basis for the most intrusive interference imaginable." If Roberts and the Reagan administration had gotten their way, discriminatory voting systems in most of the country could only be barred when discrimination could be shown to be intentional. That would make it much tougher for the feds to intervene in states and localities and guarantee equal voting rights. The Reagan administration argued that they were just trying to preserve the Voting Rights Act, but it was really attempting to preserve a Supreme Court ruling neutering the law.The Reagan administration lost that fight. Now, with Shelby in the dock, the hope of activists is that perhaps Roberts has moderated his stance. But in a ruling in 2009, he seemed to echo Reagan's view that there could not forever be "punishment" of the South for past behavior. One modification of the law that leaned in the critics' direction in the 1982 renewal gave jurisdictions the option of bailing out of Section 5 if they could prove they no longer needed to be under federal supervision. Roberts stated in that 2009 case that the Justice Department had made the bailout provision "all but a nullity." But in the years since that decision, more than a hundred jurisdictions have bailed out. Shelby County hasn't been able to argue it deserves a bailout because in 2006, it gerrymandered away the district of the only black city council member in one county town.
Roberts helped the administration hone its argument. He wrote that it made sense for parts of the VRA to require proof that discrimination was intentional.
Roberts, Serwer concludes, argued in 1982 that elected officials, not judges, should decide the rules governing when a jurisdiction had proved it was deserving of a bailout. If he stuck to that view, Section 5 would survive. It would be naive to imagine that he will not modify the argument he made when he was 27 in order to extend the bailout to all the covered jurisdictions.