The Roberts Court Is on Track Again To Limit Freedom and Deny Constitutional Rights

In 2005, during his confirmation hearing, now-Chief Justice John Roberts said, “Judges are like umpires. Umpires don’t make the rules, they apply them.”

I assume Justice Roberts was sincere in his belief of this view of the judiciary. But, almost 20 years later, we see that his court has consistently rewrote the rules of the game in service of an over 40-year conservative campaign to stack the judiciary with judges that work to achieve Republican policy priorities.

The most obvious example is the Dobbs decision that overturned Roe v. Wade, but the Roberts Court has overseen massive retrenchment of hard-fought civil rights—gutting the Voting Rights Act (VRA) in 2013, which required states with a history of discriminatory voting practices to seek approval for any changes to voting laws.

After this was overturned, dozens of states immediately enacted a host of laws that infringe on Black people’s right to vote including voter ID laws and poll closures. Another component of the VRA is now being challenged in the Supreme Court‘s current term, which prohibits voting practices that discriminate based on race. If overturned, the VRA protections would essentially disappear.

Voting rights and reproductive rights are not the only civil protections under threat from the most conservative court in decades. The right to marry who you choose could be eliminated, and access to firearms could be expanded over the right to “life and liberty” guaranteed by the Constitution.

No Inalienable Rights

We assume that the Constitution and our founding documents provide us “inalienable” rights and protections as American citizens. But Black people were not full citizens until the ’60s (and you could make a strong argument we still are not). Working people did not gain basic protections without massive union organizing. Queer people required similar struggles to be recognized as fully human, and transgender people are still fighting this fight and the backlash that comes from any movements toward full citizenship, however small.

We need to recognize that the law will only protect us if we work to ensure it does. Just as the conservative movement has weaponized the Constitution in the years since Roe v. Wade, we can harness it for a continued expansion of freedom. We can prioritize the rights of the most marginalized and grant them the freedoms they deserve, ensuring everyone can benefit from the rights guaranteed by the Constitution.

This fall, the NAACP Legal Defense Fund argued on behalf of Black voters in Alabama that the state’s recent redistricting plan was illegal under Section 2 of the VRA because it deprives these voters of the right to elect a congressional candidate of their choice. Alabama has a 27 percent African American population, and under its racially gerrymandered map, only one of the state’s seven congressional seats is capable of electing a Black representative. The ACLU of Louisiana, the organization I run, has an identical case before the Supreme Court, which is stayed, pending the Alabama decision. If the Roberts Court rules in favor of the state, the VRA will essentially be dead, allowing Black voters very little recourse against their elected representatives who choose to limit their political power.

Alabama’s counsel argued Section 2 was unconstitutional because it requires states to create “majority minority” districts to ensure representation, but the 14th and 15th Amendments prohibit considering race when drawing voting districts. This reasoning subverts the true purpose of the 14th and 15th Amendments, enacted after the Civil War, which empowered formerly enslaved Black people to have a say in their self-governance as full citizens, not simply three-fifths of a human being.

Allowing a “race-conscious” approach, as Justice Ketanji Brown Jackson discussed during the oral arguments, would allow us to protect not just people of color, but all Americans. Republican gerrymanders are one of the reasons we are unable to enact broadly popular policies, such as common-sense anti-gun violence regulations, guaranteed parental leave, campaign finance reform, and expanded health care benefits. Allowing them to draw voting maps that discriminate based on race will only make it harder to achieve these badly needed policies.

The Supreme Court will rule on Section 2 of the VRA in the coming weeks, along with other landmark cases on affirmative action, gay rights, and gerrymandering. These decisions will have significant impact on the legal rules of our livelihoods, but I fear that the Roberts Court once again will choose to rewrite the rules in favor of the powerful over the marginalized.

Our fundamental freedoms will always be filtered through the goals and desires of people in power. No matter what the Supreme Court decides in the coming months and years, it will be up to us to mobilize and ensure we have a legal system in place that protects the guaranteed rights in the Constitution for everyone.

Alanah Odoms is the executive director of ACLU of Louisiana.

The views expressed in this article are the writer’s own.