By Ari Berman (The New York Times
In late 2011, the Obama administration blocked a South Carolina law that required voters to show a photo ID before casting their ballots, finding that it could disenfranchise tens of thousands of minority voters, who were more likely than whites to lack such IDs.
But when South Carolina asked a federal court in Washington to approve the law, Brett Kavanaugh wrote the opinion upholding it. He ruled that the measure was not discriminatory, even though the Obama administration claimed that it violated the Voting Rights Act.
Judge Kavanaugh, whom President Trump nominated for the Supreme Court recently, pointed to a 2008 Supreme Court decision upholding Indiana’s voter ID law, which he interpreted as giving states broad leeway to restrict their voting procedures. “Many states, particularly in the wake of the voting system problems exposed during the 2000 elections, have enacted stronger voter ID laws, among various other recent changes to voting laws,” he noted in approval.
In addition to voter ID laws, these “recent changes to voting laws” include polling place closings, new hurdles to voter registration, and cutbacks in early voting days. Since 2011, some 22 states, mostly controlled by Republicans, have passed laws to restrict access to the ballot, which disproportionately target Democratic constituencies such as people of color.
These efforts have been encouraged by the Supreme Court’s conservative majority. In 2013, the court tore out the heart of the Voting Rights Act, ruling that mostly Southern states with a long history of voting discrimination no longer needed to have their election changes approved by the federal government beforehand.
That made the 2016 presidential election the first in 50 years without the full protections of the act. The result was a lower black turnout in key swing states like North Carolina and Wisconsin. This year, in a devastating term for voting rights, the court upheld voter purging in Ohio and racial gerrymandering in Texas, while refusing to curtail partisan gerrymandering in Wisconsin and Maryland.
The threat of voter disenfranchisement will get worse if Judge Kavanaugh is confirmed to the court. His opinion in the South Carolina case and his record in civil rights matters suggests that he will join with the court’s conservative justices to further roll back voting rights protections and other civil rights laws. If Judge Kavanaugh is confirmed, Chief Justice John Roberts will become the new swing voter. That’s terrible news for voting rights.
Justice Roberts, who wrote the 2013 opinion gutting the Voting Rights Act, has a long history of antipathy toward civil rights laws, voting laws in particular. As a lawyer in Ronald Reagan’s Justice Department in the early 1980s, he led the effort to weaken Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race or color and remains in place. He argued in a 1981 memo that the provision should block only those voting laws that were found to be intentionally discriminatory, which is much more difficult to establish than showing that a voting law has a discriminatory outcome. “Violations of Section 2 should not be made too easy to prove,” Justice Roberts wrote.
If Justice Roberts’s views were to prevail, virtually every new voter suppression law passed by Republicans would be upheld by the court. And the country’s most important civil rights law would be dead.
His antipathy toward voting laws is not the only thing we have to worry about. Justice Roberts’s ideology of colorblind conservatism views the remedies for discrimination to be as bad as the original sin of discrimination itself. This is best represented by a line from his opinion in a 2007 school integration case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Though Justice Anthony Kennedy joined Justice Roberts in most voting rights cases, they differed on other major civil rights issues. In recent years, Justice Kennedy wrote opinions upholding affirmative action at public universities as well as the Fair Housing Act of 1968, from which Justice Roberts bitterly dissented.
In future civil rights cases, there’s every reason to believe that Judge Kavanaugh will side with Justice Roberts, with whom he worked to end the 2000 recount in Florida, as opposed to Justice Kennedy, for whom he clerked from 1993 to 1994. As a lawyer in private practice, Judge Kavanaugh filed a brief before the Supreme Court on behalf of a conservative advocacy group that opposed affirmative action. As a judge in Washington, he repeatedly ruled for employers in workplace discrimination cases. In 2013, for example, he dissented from a decision finding that a black woman who was fired from her job as a budget director in the House of Representatives could pursue discrimination and retaliation claims.
Judge Kavanaugh’s nomination signals a disturbing shift in the historic role of the court. In the 1950s and 1960s, the civil rights movement looked to the Supreme Court for help in dismantling the architecture of white supremacy. And the court responded by desegregating public schools, upholding the constitutionality of the Voting Rights Act and legalizing interracial marriage, to name a few landmark decisions. Representative John Lewis of Georgia described the court in those days as a “sympathetic referee.”
That era of strong civil rights enforcement is over. With Judge Kavanaugh on the bench, this will be the most extreme court on civil rights issues since the days of Jim Crow.