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If Democrats Win Back the House, They Will Have John Roberts to Thank If Democrats Win Back the House, They Will Have John Roberts to Thank
(about 4 hours later)
A credible case can be made that the Supreme Court’s decision last June to eliminate the constitutional right to an abortion was crucial to the election of a Senate Democratic majority later that year.A credible case can be made that the Supreme Court’s decision last June to eliminate the constitutional right to an abortion was crucial to the election of a Senate Democratic majority later that year.
If Democrats take back control of the House in 2024 after having lost it in 2022, analysts may well look back to a Supreme Court decision announced last week, Allen v. Milligan, as crucial to the party’s victory. This is because the Milligan decision will quite possibly result in the replacement of as many as five majority-white Republican districts with majority-minority Democratic districts, and that’s for starters.If Democrats take back control of the House in 2024 after having lost it in 2022, analysts may well look back to a Supreme Court decision announced last week, Allen v. Milligan, as crucial to the party’s victory. This is because the Milligan decision will quite possibly result in the replacement of as many as five majority-white Republican districts with majority-minority Democratic districts, and that’s for starters.
The court’s ruling in Milligan requires Alabama to create a second House district to provide an opportunity for a Black candidate to win. The decision is an unexpected affirmation of Section 2 of the Voting Rights Act of 1965, a development that immediately scrambled calculations being made about key House races across the nation.The court’s ruling in Milligan requires Alabama to create a second House district to provide an opportunity for a Black candidate to win. The decision is an unexpected affirmation of Section 2 of the Voting Rights Act of 1965, a development that immediately scrambled calculations being made about key House races across the nation.
David Wasserman, the senior House analyst for the Cook Political Report, announced on Twitter that “in the wake of the SCOTUS Alabama decision, we’re shifting five House ratings in Democrats’ direction. It’s very likely two formerly Solid R seats will end up in Solid D.” David Wasserman, the senior House analyst for The Cook Political Report, announced on Twitter that “in the wake of the SCOTUS Alabama decision, we’re shifting five House ratings in Democrats’ direction. It’s very likely two formerly solid R seats will end up in solid D.”
Milligan, Wasserman continued, “could reverberate across the Deep South leading to the creation of new Black-majority, strongly Democratic seats in multiple states.”Milligan, Wasserman continued, “could reverberate across the Deep South leading to the creation of new Black-majority, strongly Democratic seats in multiple states.”
While more districts in other states could be added, depending on the outcome of further litigation, the Cook Report changed the “solid R” ratings of two Alabama and two Louisiana districts to “tossup” and the tossup rating of a Democratic-held seat in North Carolina to “Lean D.” While more districts in other states could be added, depending on the outcome of further litigation, The Cook Report changed the “solid R” ratings of two Alabama and two Louisiana districts to “tossup” and the tossup rating of a Democratic-held seat in North Carolina to “lean D.”
If Democrats can gain five seats, it will critically affect the balance of power in Washington.If Democrats can gain five seats, it will critically affect the balance of power in Washington.
I turned to a number of scholars and analysts to ask how they thought this might play out.I turned to a number of scholars and analysts to ask how they thought this might play out.
Nicholas Stephanopoulos, a law professor at Harvard and an expert on election law, wrote by email that Milligan is significant both substantively and politically:Nicholas Stephanopoulos, a law professor at Harvard and an expert on election law, wrote by email that Milligan is significant both substantively and politically:
In terms of political consequences, Stephanopoulos continued,In terms of political consequences, Stephanopoulos continued,
Richard Pildes, a professor of constitutional law at N.Y.U., stressed the political importance of the Alabama decision in an email: “Even though Milligan merely affirms the legal status quo, it’s going to have much more practical significance than that might suggest.”Richard Pildes, a professor of constitutional law at N.Y.U., stressed the political importance of the Alabama decision in an email: “Even though Milligan merely affirms the legal status quo, it’s going to have much more practical significance than that might suggest.”
In light of Milligan, Pildes continued,In light of Milligan, Pildes continued,
One of the reasons the Milligan case will be politically consequential, Pildes argued, is that it comes at a time when “a confluence of at least four political and technological developments will make its practical effect significant.”One of the reasons the Milligan case will be politically consequential, Pildes argued, is that it comes at a time when “a confluence of at least four political and technological developments will make its practical effect significant.”
Pildes contended that the following excerpt from Chief Justice John Roberts’s majority opinion is particularly important because it rejects the argument that race-based remedial districting is unconstitutional:Pildes contended that the following excerpt from Chief Justice John Roberts’s majority opinion is particularly important because it rejects the argument that race-based remedial districting is unconstitutional:
In that context, Roberts continued, “we are not persuaded by Alabama’s arguments that section 2 as interpreted in Gingles exceeds the remedial authority of Congress.” In that context, Roberts continued, “we are not persuaded by Alabama’s arguments that Section 2 as interpreted in Gingles exceeds the remedial authority of Congress.”
While most legal scholars agree that the Milligan decision is a win for the traditional civil rights movement and for Democrats seeking to regain control of the House, they also argue that in legal terms the victory was relatively modest and that it may prove temporary.While most legal scholars agree that the Milligan decision is a win for the traditional civil rights movement and for Democrats seeking to regain control of the House, they also argue that in legal terms the victory was relatively modest and that it may prove temporary.
Luis Fuentes-Rohwer, a professor of law at Indiana University, wrote by email in response to my inquiry:Luis Fuentes-Rohwer, a professor of law at Indiana University, wrote by email in response to my inquiry:
Two conservative members of the court, Roberts and Justice Brett Kavanaugh, joined the three liberal justices in the majority but, Fuentes-Rohwer wrote, Roberts and Kavanaugh Two conservative members of the court, Roberts and Justice Brett Kavanaugh, joined the three liberal justices in the majority, but Roberts and Kavanaugh, Fuentes-Rohwer wrote,
In fact, Fuentes-Rohwer noted,In fact, Fuentes-Rohwer noted,
Roberts, Fuentes-Rohwer continued,Roberts, Fuentes-Rohwer continued,
Roberts has earned a reputation as one of the court’s most outspoken critics of race-conscious policies. “The way to stop discrimination on the basis of race,” he famously wrote in a June 2007 decision about integrating the schools in Seattle, “is to stop discriminating on the basis of race.”Roberts has earned a reputation as one of the court’s most outspoken critics of race-conscious policies. “The way to stop discrimination on the basis of race,” he famously wrote in a June 2007 decision about integrating the schools in Seattle, “is to stop discriminating on the basis of race.”
A year earlier, in a June 2006 case, Roberts had remarked, “It is a sordid business, this divvying us up by race.”A year earlier, in a June 2006 case, Roberts had remarked, “It is a sordid business, this divvying us up by race.”
During oral arguments in a 2013 affirmative action case, Roberts questioned the benefits of diversity: “What unique perspective does a minority student bring to a physics class?”During oral arguments in a 2013 affirmative action case, Roberts questioned the benefits of diversity: “What unique perspective does a minority student bring to a physics class?”
I asked Fuentes-Rohwer what Roberts’s and Kavanaugh’s calculations might have been in siding with the liberal wing of the court in the Milligan case, and he replied:I asked Fuentes-Rohwer what Roberts’s and Kavanaugh’s calculations might have been in siding with the liberal wing of the court in the Milligan case, and he replied:
This way, Fuentes-Rohwer continued,This way, Fuentes-Rohwer continued,
If Fuentes-Rohwer has a somewhat jaundiced view of Roberts and Kavanaugh’s legal strategy, Laurence Tribe, a professor of law at Harvard, has no doubts at all. In an emailed reply to my questions, he wrote: If Fuentes-Rohwer has a somewhat jaundiced view of Roberts and Kavanaugh’s legal strategy, Laurence Tribe, a professor emeritus of law at Harvard, has no doubts at all. In an emailed reply to my questions, he wrote:
In practice, Tribe argued, Milligan “left the preclearance provision of Section 5 a dead letter and kept in place the crippling interpretation of Section 2 set forth in Brnovich v. Democratic National Committee.”In practice, Tribe argued, Milligan “left the preclearance provision of Section 5 a dead letter and kept in place the crippling interpretation of Section 2 set forth in Brnovich v. Democratic National Committee.”
But, Tribe continued, “Allen v. Milligan remains highly significant as an essential reminder that the court doesn’t exist in an isolation booth, unaffected by public reactions to its decisions that venture too far from the mainstream of legal and social thought.”But, Tribe continued, “Allen v. Milligan remains highly significant as an essential reminder that the court doesn’t exist in an isolation booth, unaffected by public reactions to its decisions that venture too far from the mainstream of legal and social thought.”
Roberts and Kavanaugh, in Tribe’s view, chose not to press the case against race-based redistricting in part because of “the controversy unleashed by the court in its shattering abortion ruling in Dobbs last June, coupled with other unrestrained shocks to the system delivered by the court in the landmark cases involving guns and climate change, and aggravated by the ethical stench swirling about the court as a result of improprieties.”Roberts and Kavanaugh, in Tribe’s view, chose not to press the case against race-based redistricting in part because of “the controversy unleashed by the court in its shattering abortion ruling in Dobbs last June, coupled with other unrestrained shocks to the system delivered by the court in the landmark cases involving guns and climate change, and aggravated by the ethical stench swirling about the court as a result of improprieties.”
These developments, Tribe continued, “almost certainly had an impact, however subconscious, on the chief justice and on Justice Kavanaugh, who has increasingly sought to distance himself from the hard right.”These developments, Tribe continued, “almost certainly had an impact, however subconscious, on the chief justice and on Justice Kavanaugh, who has increasingly sought to distance himself from the hard right.”
Tribe warned that respite will be brief:Tribe warned that respite will be brief:
Even a cynic, Tribe wrote, “would have to concede that the court, and the country, dodged a deadly bullet in Milligan, something I view as worth celebrating. But that the gun remains loaded remains a cause for deep concern.”Even a cynic, Tribe wrote, “would have to concede that the court, and the country, dodged a deadly bullet in Milligan, something I view as worth celebrating. But that the gun remains loaded remains a cause for deep concern.”
The scope of the Milligan decision extends well beyond House districts. Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, noted in an email that as a result of Milligan, “Section 2 of the V.R.A. will continue to protect the rights of people of color at the congressional, state legislative and local government level.” The scope of the Milligan decision extends well beyond House districts. Ruth Greenwood, the director of the Election Law Clinic at Harvard Law School, noted in an email that as a result of Milligan, “Section 2 of the V.R.A. will continue to protect the rights of people of color at the congressional, state legislative and local government level.”
Westwood cited the Democracy Docket, a liberal website that tracks election litigation, to illustrate the scope of current cases that will feel the impact of the Milligan decision. Westwood cited Democracy Docket, a liberal website that tracks election litigation, to illustrate the scope of current cases that will feel the impact of the Milligan decision.
Democracy Docket reported that “31 cases allege Section 2 claims and are currently pending in federal court,” most of which are challenges to state legislative redistricting plans, although others include challenges to judicial, county commission and public service commission districts.Democracy Docket reported that “31 cases allege Section 2 claims and are currently pending in federal court,” most of which are challenges to state legislative redistricting plans, although others include challenges to judicial, county commission and public service commission districts.
Guy-Uriel Emmanuel Charles, also at Harvard Law School, wrote by email:Guy-Uriel Emmanuel Charles, also at Harvard Law School, wrote by email:
Not only was Charles surprised that Roberts voted in favor of the plaintiffs, but if he had not known that the author of the opinion was Roberts, he said, “Elena Kagan would have been my first guess.” Charles was surprised not only that Roberts voted in favor of the plaintiffs but also that he was the author of the opinion; if Charles had not known, he said, “Elena Kagan would have been my first guess.”
The court’s endorsement of the Voting Rights Act is not without significance, in Charles’s view:The court’s endorsement of the Voting Rights Act is not without significance, in Charles’s view:
Kavanaugh, Charles noted,Kavanaugh, Charles noted,
Kavanaugh purposefully left himself room to shift to a more conservative interpretation in future cases, according to Ellen D. Katz, a law professor at the University of Michigan. In “The Whole Point of the Enterprise,” Katz pointedly writes that a key element in the Milligan case is the refusal of Kavanaugh to go as far as Roberts in endorsing certain liberal premises used to support the Voting Rights Act: Kavanaugh purposefully left himself room to shift to a more conservative interpretation in future cases, according to Ellen D. Katz, a law professor at the University of Michigan. In “The Whole Point of the Enterprise,” Katz pointedly wrote that a key element in the Milligan case is the refusal of Kavanaugh to go as far as Roberts in endorsing certain liberal premises used to support the Voting Rights Act:
Instead, Katz notes, Instead, Katz noted,
In other words, Katz continues, “the invitation was, of course, clear: Bring this claim and the Milligan v. Allen dissenters might just have a majority in the next case.” In other words, Katz continued, “the invitation was, of course, clear: Bring this claim, and the Milligan v. Allen dissenters might just have a majority in the next case.”
In support of Katz’s point, Pildes wrote that Kavanaugh’s concurrence “suggests he still is leaving open more questions about the role of race under the V.R.A. — particularly his line, which echoes Justice O’Connor’s in the affirmative action case, Grutter, suggesting some time limit on race-based remedial policies under the V.R.A.” In support of Katz’s point, Pildes wrote that Kavanaugh’s concurrence “suggests he still is leaving open more questions about the role of race under the V.R.A. — particularly his line, which echoes Justice O’Connor’s in the affirmative action case Grutter, suggesting some time limit on race-based remedial policies under the V.R.A.”
Richard L. Hasen, an expert in election law at U.C.L.A., cited Katz in a Slate essay in which he warns that despite Roberts’s strong opinion in Milligan reaffirming the vitality of the Voting Rights Act, Richard L. Hasen, an expert in election law at U.C.L.A., cited Katz in a Slate essay in which he warned that despite Roberts’s strong opinion in Milligan reaffirming the vitality of the Voting Rights Act,
The medium-range future of the Voting Rights Act is clearly uncertain under the current Supreme Court. What is less uncertain is that the court has strengthened the hand of House Democrats going into 2024. At the moment, the House is divided, with 222 Republicans, 212 Democrats and one vacancy, a probable Democratic seat in Rhode Island. The medium-range future of the Voting Rights Act is clearly uncertain under the current Supreme Court. What is less uncertain is that the court has strengthened the hand of House Democrats going into 2024. At the moment, the House is closely divided, with 222 Republicans, 212 Democrats and one vacancy, a probable Democratic seat in Rhode Island.
On key policy matters, including abortion, labor law, gun regulation and environmental protection, the Supreme Court has repeatedly ruled against the left. In the case of elective politics, however, the court has, of late, proved to be, at least temporarily, an ally of the Democratic Party.On key policy matters, including abortion, labor law, gun regulation and environmental protection, the Supreme Court has repeatedly ruled against the left. In the case of elective politics, however, the court has, of late, proved to be, at least temporarily, an ally of the Democratic Party.
As The Associated Press reported, during arguments in October, Justice Ketanji Brown Jackson “scoffed at the idea that race could not be part of the equation. Jackson, the court’s first Black woman, said that constitutional amendments passed after the Civil War and the Voting Rights Act a century later were intended to do the same thing, make Black Americans ‘equal to white citizens.’”As The Associated Press reported, during arguments in October, Justice Ketanji Brown Jackson “scoffed at the idea that race could not be part of the equation. Jackson, the court’s first Black woman, said that constitutional amendments passed after the Civil War and the Voting Rights Act a century later were intended to do the same thing, make Black Americans ‘equal to white citizens.’”
After the Milligan decision was announced, Evan Milligan, one of the original plaintiffs in the case, told reporters: “We are grateful that the Supreme Court upheld what we knew to be true: that everyone deserves to have their vote matter and their voice heard. Today is a win for democracy and freedom not just in Alabama but across the United States.”After the Milligan decision was announced, Evan Milligan, one of the original plaintiffs in the case, told reporters: “We are grateful that the Supreme Court upheld what we knew to be true: that everyone deserves to have their vote matter and their voice heard. Today is a win for democracy and freedom not just in Alabama but across the United States.”
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