Wednesday night, as the Kavanaugh hearing was wrapping up for the day and few people were still paying attention to the Supreme Court nominee’s testimony, Sen. Kamala Harris (D-CA) had a pointed exchange with Judge Brett Kavanaugh about whether he is likely to tear down America’s safeguards against voter suppression.
The exchange will not calm anyone’s concerns that voting rights will soon be on the Supreme Court’s chopping block.
Harris began the exchange by asking about Shelby County v. Holder, a 2013 decision where the Court’s Republican majority voted along party lines to strike down a key provision of the Voting Rights Act of 1965. Before Shelby County, states and localities with a history of racial voter discrimination had to “pre-clear” any new voting requirements with officials in Washington, DC. As Harris pointed out, new voting restrictions thrived after Shelby County removed this safeguard.
Kavanaugh, for his part, tried to downplay the significance of Shelby County. “There is still, of course, Section 2 of the Voting Rights Act,” the nominee explained. That provision “allows litigation brought by plaintiffs to challenge voter restrictions that are enacted with discriminatory intent or discriminatory effects.”
Thus, so long as Section 2 remains good law, a voting rights plaintiff can prevail if they show that a state law has a disproportionate effect on voters of color, even if that plaintiff cannot prove that lawmakers acted with racist intent when they voted for the law. This disparate effects test is especially important after the Supreme Court’s decision last June in Abbott v. Perez, which made it nearly impossible to prove that the lawmakers who passed a voting restriction acted with racist intent.
Abbott, like Shelby County, was a 5-4 decision with all five Republican members of the Court in the majority and all four Democrats in dissent.
After Kavanaugh brought up Section 2, Harris asked Kavanaugh a pointed question — “do you believe that Section 2 is constitutional?” The nominee’s answer was non-committal at best.
Judge Kavanaugh initially refused to answer the question because he deemed it a “hypothetical,” adding that “as a general matter, I don’t want to pre-commit on any statute.”
Faced with this non-answer, Harris took a different approach. “In his confirmation hearing in 2005,” the senator pointed out, “Chief Justice Roberts, when asked about Section 2, and whether it was constitutional, said ‘I have no basis for viewing it as constitutionally suspect, and I don’t.”
Harris then asked Kavanaugh if he agrees with Roberts, and Kavanaugh took the lifeline. “I don’t have any basis for viewing it that way either,” he said.
On the surface, this exchange may reassure supporters of free and fair elections in the United States. But Kavanaugh’s decision to align with Roberts should, if anything, raise alarms among supporters of democracy.
During his 2005 confirmation hearing, Roberts did, indeed, claim that he has “no basis” for viewing Section 2 of the Voting Rights Act as “constitutionally suspect.” The reason this issue came up in 2005, however, is because, as a young lawyer, Roberts took a very different view.
In a memo Roberts worked on while he was a Reagan administration attorney, Roberts said that “on the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based.”
Roberts also edited a memo arguing that a law President Reagan signed in 1982, which established that voting rights plaintiffs will prevail if they can prove discriminatory effects, “would establish essentially a quota system for electoral politics.”
The word “quota” is an especially toxic word in civil rights litigation. In his 1978 opinion in Regents of the University of California v. Bakke, Justice Lewis Powell used the word “quota” to describe an affirmative action program he voted to strike down. After Bakke, racial conservatives frequently used the word “quota” to imply that a program intended to cure racial injustice is unconstitutional.
Now, in fairness, a lot happened between 1982, when Reagan signed the law that Roberts opposed, and 2005, when the Chief Justice had his confirmation hearing. It’s possible that Robert moderated his views in the intervening years.
Except that, during the Supreme Court’s 2015 oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Roberts strongly suggested that any law that uses a discriminatory effects test is unconstitutional. “Is there a way to avoid a disparate-impact consequence without taking race into account in carrying out the governmental activity?” Roberts asked in that case. He added that “it seems to me that if the objection is that there aren’t a sufficient number of minorities in a particular project, you have to look at the race until you get whatever you regard as the right target.”
Ten years after his confirmation hearing, Roberts still appears to believe that laws banning actions which have a discriminatory effect on people of color are akin to an unconstitutional racial quota.
In Inclusive Communities, Roberts was one of four justices who voted to gut the Fair Housing Act and strip away its ban on housing practices that have such an effect on minorities. He did not get his way because Justice Anthony Kennedy voted with the Court’s liberal bloc.
Kennedy, however, is now gone, and Kavanaugh is Donald Trump’s pick to replace him. If Kavanaugh really does agree with Roberts on voting rights, as he told Senator Harris that he does, America could soon lose its last, best safeguard against Jim Crow voter discrimination.