The Roberts Court has, in a rush, offered “a series of major upheavals in the past month,” beginning with Louisiana v. Callais, which gutted the Voting Rights Act while pretending not to, followed by a pair of quick shadow docket rulings (which cast aside the court’s Purcell principle that cautioned against changing voting rules close to scheduled elections) setting off a frenzied scramble in Republican states to create freshly gerrymandered districts, eliminating Black representation, before the states’ 2026 primaries.
Rick Hasen began a commentary (quoted above) on these judicial machinations with these words: “Over his two decades on the Supreme Court, United States Chief Justice John Roberts had consistently played the long game when it comes to the court’s weakening of voting rights. That was until the past few weeks.”
Hasen cites an op-ed he wrote in 2013 (after the Shelby County decision) to illustrate the chief justice’s pattern of playing the long game:
In an opinion brimming with a self-confidence that he hides behind a cloak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act.
The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.
In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line, even if the court wants to wait another year or two to pull the trigger.
You can still count on the court’s pattern of pretending, imagining, and fantasizing without regard for what is true. That hasn’t changed. But, until recently, you could count on the chief justice’s drawing things out, signaling before pulling the trigger, playing the long game. “That was until the past few weeks.” Now the court is in a big hurry. Hasen continues:
The court did not have to proceed in such a hurried fashion. It could have waited to intervene in the Alabama case until the fall. It could have waited its typical 32 days for Callais to go into effect. It could have even held the case until the end of its term in late June or early July, when the primary season was over. It could have signaled, as the Supreme Court did in 1964’s Reynolds v. Sims, establishing the “one person, one vote” rule for state legislative districts, that because of “equitable considerations,” it would not be applying the new rule to the impending elections. It could have said that Purcell considerations militated against immediate change. Instead, the court’s conservatives have made an unusually mad dash toward radical change.
Why the rush?
Hasen offers three possible reasons. Although he offers them as either-ors, it’s easy enough to see each of them as factors motivating Roberts and his Republican colleagues.
First, pure partisanship. There is little doubt that the redistricting decisions (Callais and the shadow docket follow ups) will advantage Republicans and disadvantage Democrats in the 2026 and 2028 Congressional elections. (Yeah, but wouldn’t you expect Roberts to look a bit further ahead than a couple of election cycles?)
Second, motivated reasoning. In other words, the decisions advantage Republicans, but the Republican justices are not conscious of their gross partisanship. (Implausible? Maybe, maybe not. My first response to Alito’s declaration of historical progress in his Callais opinion — “And if, as a result of this progress, it is hard to find pertinent evidence relating to intentional present-day voting discrimination, that is cause for celebration.” — was: He’s trolling us! But other observers appear to accept this as what the man actually believes. It’s hard to doubt that the Republican justices are living in a bubble that could spark motivated reasoning.)
The third possibility: Roberts has decided it’s time to cut to the chase. Here’s how Hasen puts it:
Third, perhaps John Roberts sees the court as running out of time, and he wants to get many rulings in the books that change American politics in his preferred direction and forestall the move toward a multiracial democracy. He’s a 71-year-old chief justice now, not a 26-year-old staffer. The Supreme Court’s rulings in cases ranging from abortion to presidential immunity to the power of the government to fight climate change are growing increasingly unpopular. In the most important cases, the court is now splitting along not just ideological lines but party lines: All the conservative justices on the court have been appointed by Republican presidents, and all the liberals by Democrats.
Roberts well knows that Democrats and progressives are mobilizing against the court. The chief justice has complained about the public viewing the justices as political actors, but that is exactly what they are. People, including me, who had resisted Supreme Court reform, increasingly see it as the only way to save American democracy.
I wholeheartedly agree that Roberts “wants to get many rulings in the books that change American politics in his preferred direction and forestall the move toward a multiracial democracy.” It is possible that the other Republican justices forced the chief justice’s hand; there may have been a majority for this decision even without Roberts. Or perhaps Roberts would have done less slow-walking in previous years if the majority then had been less restrained.
Republican justices have constituted the Supreme Court’s majority for more than 50 years, but the confirmation of Donald Trump’s three nominees — after the Federalist Society’s vow of “no more Souters” — tilted the balance of the court dramatically.
Following Rucho v. Common Cause (2020), when two of Trump’s picks had been seated and Republicans constituted the 5-4 majority, the Callais decision this year, with an additional Republican joining the majority for a 6-3 victory, set off a furious scramble in Republican controlled statehouses to implement extreme gerrymanders of Congressional district maps. (State legislative maps and redistricting of localities will come next.)
The Roberts Court deliberately brought about this race to bottom, undermining fair representation and equality among voters. This was a choice. A partisan, political choice. Rucho and Callais taken together appear laser focused on impairing the Democrats’ prospects of winning elections at the federal, state, and local levels.
Add a third ruling, after the 6-3 Republican supermajority was in place: Trump v. United States (2024) was completely untethered from the Constitution or anything else that could possibly justify such a reckless decision. We have witnessed the results with Trump 2.
Each of these three decisions — and there have been a number of others — are fundamentally at odds with democratic principles. They are antithetical to American democracy. But never before fall 2020, with the confirmation of the third Trump justice, has the Republican majority on the Roberts Court been more powerful or more unaccountable. Playing the long game, holding back now, makes little sense. Never in the Trump era has an authoritarian victory been so close at hand.
While Democrats (some of them) have begun to realize that undoing these decisions and disempowering these justices are critical to winning elections, to regaining power, and to implementing public policies that the Roberts Court will not strike down, the Republican justices have done their best to diminish Democratic prospects and marginalize Democratic voters.
The Roberts Court, seeing an opportunity to secure a convincing and durable victory over opponents of a MAGA America, has no interest in restraint.