The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Gingles All The Way

Or, Sweet Home Alabama.


Recently, I was speaking to a group of law students, and one asked who my favorite writer was on the Supreme Court. I quickly replied, the Chief Justice. Then I paused, and added a caveat–when he is in dissent, because you know he actually believes what he is writing. Roberts is, without question, a brilliant lawyer. But so much of his jurisprudence is motivated by extra-legal concerns. Institutionalism. Legitimacy. Virtue signaling. Long game. And so on. I am skeptical whenever I read anything signed by the Chief.

Did John Roberts actually believe what he wrote in Allen v. Milligan? On the one hand, the majority opinion has all of the ingredients for a John Roberts blue plate special: (i) Roberts votes with the left, (ii) achieves a result liberals like, (iii) promotes stare decisis of decisions liberals like, and (iv) brings along a conservative for the ride. When the Chief touches all four bases, the specifics of his opinion are less important. But, on the other hand, in Allen, Roberts did not just go through the motions. His opinion was rigorous, thorough, and avoided any weak wiggle words. He seems firmly committed to the what he called the "delicate legislative bargain" of 1982–even if it is one he vigorously fought as a wunderkind in the Reagan administration. Plus, he can rely on Thornburg v. Gingles, a four-decade-old precedent, that "effectuates the delicate legislative bargain" of 1982. And Congress has not attempted to disturb the Gingles test in the prior four decades. We continue to be governed by the dead hand of William Brennan.

Perhaps it is possible to reconcile Shelby County with Allen. In Shelby County, Roberts faulted Congress for taking no action to update the coverage formulas over the decades. They simply re-enacted the same maps without regard to demographic changes. Plus, Congress could always enact new maps post-Shelby County. (A decade later, no new maps have been adopted.) By contrast, Congress proactively responded to City of Mobile v. Bolden by reaching a "delicate" compromise in 1982. And unlike static coverage formulas, which disregarded shifts in population, the "effects" test from the 1982 amendment could apply prospectively, regardless of the facts on the ground. Plus, the Chief generally favors stare decisis (hello Dobbs). His barb to Justice Thomas in Footnote 3 was on brand: "That is not such a bad definition of stare decisis." Given this background, Roberts could simply follow Gingles all the way.

I don't think Roberts actually believed in his opinions in the DACA and census cases. I'm still on the fence about NFIB v. Sebelius. But on further reflection, I think Roberts actually had his heart in this VRA case.