John Roberts Launched This War Four Decades Ago

Now racist redistricting will destroy our democracy, unless Democrats move decisively to counter it.

U.S. President Ronald Reagan greeting John Roberts. Photo by: Circa Images/GHI/Universal History Archive/Universal Images Group via Getty Images.

On April 30, the morning after the Supreme Court handed down its ruling in Louisiana v. Callais, Governor Jeff Landry of Louisiana got to work. Landry is one of the country’s most aggressively MAGA red-state governors, and by then, had already issued an emergency executive order halting the state’s primary election. He did this even though candidates had already qualified, absentee ballots had been mailed, and early voting had begun. None of that mattered. Landry wanted new congressional maps because he knew Donald Trump wanted those maps.

Black Louisianans make up roughly a third of the state’s population. Under the maps that were in place, Black voters held two of the state’s six congressional seats, near proportional representation. But under the maps Landry intended to draw, they would hold just one.

Representative Cleo Fields represents Louisiana’s majority-Black 6th District, anchored in the state capital of Baton Rouge. It was the hard-won product of years of Voting Rights Act litigation, and it was about to be drawn out of existence. Landry knew precisely what he was doing. And Louisiana’s was just the first move of the day.

By day’s end, Florida had passed new congressional maps designed to eliminate four Democratic seats. Alabama called an extraordinary legislative session to consider its response to the ruling. Mississippi’s governor was reaching for the phone. The Supreme Court, in a single 6-3 ruling authored by Justice Samuel Alito, had handed Republican governors across the South the legal cover they needed to undo 60 years of voting rights progress.

Justice Elena Kagan’s dissent did not mince words. Section 2 of the Voting Rights Act, she wrote, was now “all but a dead letter.” The Court’s gutting of Section 2 was the culmination of a nearly half-century project that began when Chief Justice John Roberts was a 26-year-old Reagan staffer, arguing in 1982 that minority voting protections were “the most intrusive interference imaginable by federal courts into state and local processes.”

This is Jim Crow 2.0. Not literacy tests or poll taxes, but sophisticated, computer-drawn maps that accomplish by geometry what the old South once accomplished by exclusion and terror. This time, it comes with a Supreme Court opinion as cover.

The architects of Callais have been single-minded and relentless. But they also may have miscalculated. Democrats, after all, have spent the last two years learning how to fight the redistricting wars. And they are not finished.

What was built and what was broken

To understand what the country has just lost, let’s consider what it once had. The Voting Rights Act of 1965 (VRA) was a direct response to a century of deliberate disenfranchisement: literacy tests, poll taxes, whites-only primaries, and yes, overt violence, all designed to ensure that Black Americans could not translate their numbers into political power. The 15th Amendment, ratified nearly a century earlier, had guaranteed the right to vote regardless of race. But for most of that century, it had been a promise unfulfilled.

The VRA changed that with startling speed. According to the Joint Center for Political and Economic Studies, Black Americans went from holding fewer than 1,000 elected offices nationwide in 1965 to over 10,000 in the decades that followed. In Congress, only five African Americans served in the House and Senate combined when the Act was signed; that number would grow nearly tenfold. U.S. Census data showed the registration gap between Black and white voters in the former Confederate states, nearly 30 percentage points in the early 1960s, falling to single digits within a single decade. A 2023 study in the Journal of Political Economy confirmed what the numbers already showed: the VRA caused these gains, producing measurable increases in Black representation at every level of government in covered jurisdictions.

The Act worked through two primary mechanisms. Section 5 was the shield. It required states and localities with documented histories of racial discrimination to obtain advance approval from the Justice Department before changing any voting law or redrawing any district map. As the Brennan Center for Justice has documented, the preclearance requirement was so effective that Congress renewed it four times, most recently in 2006, when it passed the House 390-33 and the Senate 98-0 before President George W. Bush signed it into law.

Section 2 was the spear. As the Brennan Center has explained, it allowed voters, civil rights groups, or the Justice Department to challenge any voting practice, including redistricting maps, that resulted in minority voters having less opportunity to elect candidates of their choice. Critically, plaintiffs did not have to prove intentional discrimination. The law focused on effect, not motive. The landmark 1986 case Thornburg v. Gingles gave civil rights litigators a practical framework to fight maps that cracked and packed minority communities into political irrelevance.

For nearly five decades, Sections 2 and 5 together formed the backbone of minority political representation in America. Then the Roberts Court went to work.

Section 5 died first. In Shelby County v. Holder (2013), Chief Justice John Roberts wrote for a 5-4 majority that the “coverage formula” determining which states had to seek preclearance was outdated and unconstitutional. But without a working formula, Section 5 became an empty vessel. The consequences were immediate. According to the Leadership Conference on Civil and Human Rights, which has systematically documented the damage, formerly covered jurisdictions closed more than 1,600 polling places between 2012 and 2018, concentrated overwhelmingly in predominantly Black and Latino counties that would previously have required federal approval before shuttering a single voting location. Voter roll purges accelerated. Strict voter ID laws proliferated. And every one of those restrictions, the Leadership Conference found, was enacted by Republicans.

That left Section 2 as the last piece of the VRA with teeth. And Callais just knocked them out.

The mechanics of what Justice Alito’s majority did are worth understanding precisely because the Court was careful not to announce what it was actually doing. The ruling does not formally repeal Section 2 but renders it nearly impossible to enforce. Under the new Gingles framework imposed by Alito, plaintiffs cannot use race as a districting criterion when drawing the illustrative maps required to demonstrate a Section 2 violation. In plain English, they must prove racial vote dilution using maps and evidence the Court has just ruled inadmissible.

The second half of the trap is equally devious. Rucho v. Common Cause declared partisan gerrymandering beyond federal court review in 2019. Since then, any map that dilutes Black voting power can simply be defended as a partisan gerrymander rather than a racial one. Because Black voters in the South vote overwhelmingly Democratic, that defense is almost always available to a Republican legislature. As legal scholar Joshua Douglas wrote in the wake of Callais, partisan gerrymandering has now become “an absolute defense to any claim of racial discrimination under Section 2 of the Voting Rights Act.”

Justice Kagan’s dissent states this plainly. Under the Court’s new framework, she wrote, a state can systematically dilute minority citizens’ voting power without legal consequence simply by invoking partisan motive as a shield. The result, as she concluded, is that minority voters in states still marked by residential segregation and racially polarized voting can now be “cracked out of the electoral process” with no federal remedy available to stop it.

As Kagan herself noted, Callais did not arrive in a vacuum. It is, in her words, “part of a set,” the latest in a decade-long series of decisions with Section 2 always in the crosshairs. To understand why, we have to go back to the Chief Justice’s early writings on the subject in 1982.

A career of fighting against voting rights

When Roberts arrived at the Reagan Justice Department in August 1981, fresh from a clerkship under Justice William Rehnquist, he was assigned two portfolios: 1) prepping Sandra Day O’Connor for her Senate confirmation hearings, and 2) fighting the reauthorization of the Voting Rights Act. O’Connor sailed through. The VRA fight would consume Roberts for the next two years and, as it turned out, the next four decades.

The battle centered on the “effects test” of Section 2. A 1980 Supreme Court decision in City of Mobile v. Bolden had required Section 2 plaintiffs to prove that a voting law was passed with discriminatory intent, an almost impossibly high bar that had brought civil rights litigation to a near standstill. A bipartisan coalition in Congress wanted to fix that by clarifying that Section 2 prohibited laws with discriminatory effects, regardless of intent.

Roberts saw this as an existential threat. As the Brennan Center for Justice has documented from his archived memos, Roberts wrote that Section 2 violations should not be “too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” The effects test, he argued in another memo, would “throw into litigation existing electoral systems at every level of government nationwide when there is no evidence of voting abuses nationwide supporting the need for such a change.” His framing was explicit: “Just as we oppose quotas in employment and education, so too we oppose them in elections.”

His colleagues remembered a young man who was more than just doing his job. As Michael Carvin, who worked alongside Roberts in what he called their “band of brothers” at the Justice Department, later told The Nation, “Voting — that was John’s fight. Always John’s fight.” Bruce Fein, another colleague, was equally direct: “He was intimately involved in that. Definitely, intimately involved. John, more than anyone, was very familiar with the voting rights stuff.”

Roberts penned more than two dozen memos urging the administration to hold the line. When the Senate coalition in favor of the effects test reached 61 cosponsors, enough to break a filibuster, Roberts was undeterred. “Do not be fooled by the House vote or the 61 Senate sponsors of the House bill into believing that the President cannot win on this issue,” he wrote to the attorney general in January 1982. He was wrong about the math, and he knew it by the end. Senator Bob Dole forged a compromise that carried the effects test into law. Congress reauthorized the VRA with the effects test intact.

Roberts took a lesson from the defeat. As David Daley recounted in his book Antidemocratic, it was in the spring of 1982, as Roberts and his colleagues lost ground at DOJ, that young conservative law students gathered at Yale for the first national meeting of what would become the Federalist Society. The conclusion they reached was simple: if you want to change the law, change the judges. Roberts would not need 60 senators. He would need at least four other colleagues.

He got five.

When Roberts appeared before the Senate Judiciary Committee for his confirmation hearings to be Chief Justice of the Supreme Court in 2005, he brushed aside questions about his record on voting rights. “I was a 26-year-old staff lawyer,” he said. “I was not shaping administration policy.” As The Nation has since documented from the National Archives, that was a significant distortion. His archived files show an ideological architect devising messaging strategies, ghostwriting op-eds for his superiors, and driving the administration’s position with a fervor his own colleagues described as zealotry.

Once on the Court, Roberts moved methodically. In a 2007 affirmative action case, he articulated his core view with characteristic bluntness: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” As The Atlantic noted, that is the sort of line that sounds like an argument-ender as long as you don’t think too hard about it. Applied to redistricting, it means that a map deliberately drawn to dilute Black political power is constitutionally indistinguishable from a remedial map drawn to restore it. In Roberts’s view, the VRA itself, in trying to correct the former, was perpetrating the latter. That logic leads directly to Callais.

In 2009, Roberts flagged Section 5 as raising what he called “serious constitutional concerns.” That was a signal to litigants about where to aim. In Shelby County v. Holder (2013), he delivered that blow, striking down the coverage formula that made Section 5 operable. His majority opinion assured that Section 2 remained available as a remedy, a reassurance the Brennan Center later described as roughly as credible as his confirmation hearing testimony.

Rucho v. Common Cause, decided in 2019, declared partisan gerrymandering beyond federal court reach. That case removed the last procedural obstacle to using partisan motive as a racial shield. Notably, Roberts’s own Rucho opinion acknowledged that excessive partisan gerrymandering “leads to results that reasonably seem unjust.” He nevertheless concluded that courts had no role in stopping it.

But as The Atlantic observed, that restraint-cloaked abdication set the predicate for Callais perfectly. States now had both a free hand to gerrymander for partisan advantage and, thanks to Callais, an explicit instruction to use that partisan motive as a shield against racial discrimination claims. “We’re not discriminating against Blacks and Latinos. We’re just electing more Republicans.”

Roberts had called the practice of gerrymandering unjust. But he had built the architecture that made it unstoppable. In Allen v. Milligan (2023), Roberts surprised observers by joining the liberal justices to preserve a Section 2 challenge in Alabama. But this was a feint. His majority opinion left the door conspicuously open, signaling that the effects test’s foundations remained vulnerable.

Callais walked through that door.

The opinion was written by Samuel Alito, not Roberts. But it is Roberts’s project, start to finish, advancing the same arguments he had as a 26-year-old staffer, now dressed in the language of constitutional doctrine rather than DOJ memoranda. Alito’s opinion is threaded with references to Shelby County, the ruling Roberts authored. The two men arrived at the Court together as George W. Bush appointees and have spent years methodically dismantling the structural protections that made minority political representation possible.

The coordination did not end with the opinion itself. As Georgetown University Law Center professor Steve Vladeck noted, the Court moved within days to fast-track certification of Callais. It waived the standard 32-day waiting period and issued its judgment quickly and in apparent service of Louisiana’s effort to redraw its maps before the 2026 midterms.

Justice Ketanji Brown Jackson dissented from that procedural maneuver, calling it politically motivated. Alito’s response was biting, calling her arguments “baseless and insulting.” But note the pattern: In 2022, Alito was in the majority that stayed lower court rulings blocking Alabama’s unlawful maps and allowed the state to use maps the Court itself later ruled unconstitutional. Republicans won all five of the affected districts, giving them their exact margin of House control in the 118th Congress. Now, Alito was moving with equal speed in the opposite direction, rushing to implement a ruling that would benefit Republicans once again. As Vladeck observed, someone would need to explain why the Court intervened to allow Alabama to use an unlawful map in 2022, while simultaneously moving to prevent Louisiana from using one in 2026.

What Roberts could not accomplish with two dozen memos and a losing argument before a bipartisan Senate, he has now accomplished with a six-justice majority and a lifetime appointment. The difference now is that nobody can outvote him.

The offensive is already underway

The fallout from Callais has been immediate. As NBC News reported, the governors of Alabama and Tennessee called special legislative sessions within 48 hours of the ruling. In Mississippi, Governor Tate Reeves announced a special session would convene within 21 days. In South Carolina, Governor Henry McMaster signaled that lawmakers should revisit the state’s maps.

And then there was Trump. Within days of the ruling, he took to Truth Social to make the coordination explicit and the motive unmistakable. “We should demand that State Legislatures do what the Supreme Court says must be done,” he posted on Truth Social. “That is more important than administrative convenience. The byproduct is that the Republicans will receive more than 20 House Seats in the upcoming Midterms!”

Trump had already publicly posted his encouragement to Tennessee Governor Bill Lee—“PUSH HARD!”—but now he dispensed with any pretense that this was about constitutional compliance. As for the voters whose ballots were already cast, whose primaries were already underway? “If they have to vote twice, so be it.”

The targets in each state are not subtle. According to CBS News, Tennessee’s special session is aimed squarely at Rep. Steve Cohen’s Memphis-based 9th District, the only Democratic seat in the state’s congressional delegation. In Mississippi, Republican legislators openly intend to eliminate Rep. Bennie Thompson’s 2nd District, a seat that, like Fields’s in Louisiana, was itself created through Section 2 litigation. Florida Governor Ron DeSantis’s new map gives Republicans a 24-to-4 theoretical advantage in the state’s congressional delegation, a margin that would have been unthinkable even two years ago.

Alabama’s situation is in flux. Governor Kay Ivey called a special session, but as CNN reported, Alabama is currently under a court order restricting use of newly drawn congressional maps until after the 2030 census. The special session is contingency planning, setting up procedures for a special primary if the Supreme Court grants the state’s request for emergency relief and allows it to revert to its earlier maps. The target, as before, is Rep. Shomari Figures in the 2nd District. Whether Alabama gets there in time for 2026 remains an open legal question, and one that could be answered by the Supreme Court at any moment.

Georgia’s Governor Brian Kemp declined to redistrict before the state’s May 19 primary, but as Roll Call noted, Kemp made clear that 2028 redistricting remains very much on the table. And Georgia’s entire five-seat Democratic congressional delegation holds majority-Black districts that are now legally vulnerable.

Meanwhile, the legal resistance to Landry’s Louisiana emergency declaration is already underway. As Democracy Docket reported, four separate lawsuits have been filed, two in state court and two in federal, seeking to block the governor’s suspension of an active election. A state court hearing is scheduled for May 6. A three-judge federal panel has ordered Louisiana to formally respond to the plaintiffs’ emergency request. The legal fight is not over. It has simply moved to different terrain and will be waged without the protection of Section 2.

The aggregate math is sobering. Analysts estimate the ruling could boost the Republican House majority by as many as 19 additional seats compared to 2024 maps. That’s enough, in a chamber currently decided by single digits, to render Democratic House gains in 2026 and 2028 functionally impossible without a significant response. That response is now the central strategic question facing every Democratic official in America.

“Don’t Agonize. Organize.”

The question Democrats now face is not whether to respond. It is whether they have the will to respond at the scale the moment demands, and whether they can do so without sacrificing the principles they claim distinguish their approach to democracy.

Marc Elias, the founder of Democracy Docket and the Democratic Party’s most prominent election lawyer, did not equivocate in his response to Callais. “Today’s VRA decision is intellectually dishonest and wrong,” he wrote on social media. “The conservatives basically said: Black people can vote for their preferred candidates, as long as they prefer the right candidates — which will be Republicans.” Democracy Docket warned that the ruling will likely derail at least 28 pro-voting lawsuits already underway. But litigation alone, in a post-Callais legal landscape, cannot be the whole answer.

The fuller answer involves redistricting. That means Democrats confronting what it actually entails. Writing in The New Republic, Greg Sargent urged that the Supreme Court decision in Callais points in one direction only. Come 2028, Democrats have to declare a take-no-prisoners redistricting war on the GOP. But the math of that war depends heavily on what happens in state legislative elections this November.

A new analysis by Fair Fight Action, first reported by Sargent and circulating among Democratic leadership, puts concrete numbers on the opportunity. According to that analysis, Democrats could redraw anywhere from 10 to 22 additional congressional seats for the party in time for the 2028 elections, depending on how aggressively they act and how many state legislative chambers they flip this fall. “Democrats have a clear path to neutralize this GOP power grab if they want to take it,” noted Max Flugrath, Fair Fight Action’s senior communications director. “This is the ‘break glass in case of emergency’ moment for American democracy.”

The “floor” scenario of 10 seats requires no new legislative victories at all. New York, Colorado, Maryland and Oregon already have the requisite Democratic control to redraw their congressional maps aggressively for 2028. Governor Kathy Hochul of New York has already posted publicly that her state will “lead the fight” and is working with the legislature to change the state’s redistricting process.

The “ceiling” of 22 seats requires flipping chambers in Wisconsin, Pennsylvania and Minnesota, where Democratic governors already hold the veto pen. Wisconsin alone, where Republicans hold six of eight congressional seats in a state that votes evenly statewide, could yield three new Democratic seats under an aggressive redraw. As Axios reported, Rep. Jamie Raskin (D-MD) confirmed he would be “centrally” involved in pushing federal anti-gerrymandering legislation simultaneously, offering Republicans a clear off-ramp if they want one.

There is a genuine tension in the Democratic response. Several members, including within the Congressional Black Caucus, have raised concerns that unpacking majority-Black districts in blue states to maximize partisan advantage could dilute the very minority representation Democrats are fighting to protect in the South. That tension is real and will require difficult negotiation within the party.

The Democratic position, as Sargent has framed it, is not that gerrymandering is good. It is that unilateral disarmament in the face of a coordinated Republican offensive is not an option. Democrats passed a bill through the House in 2021 that would have ended partisan gerrymandering nationally, but Republicans blocked it in the Senate. Democrats support the John Lewis Voting Rights Advancement Act, which as Democracy Docket has reported, would restore preclearance-style protections and set federal minimum standards against racial vote dilution. But that can’t pass while Republicans control the Senate. Both become possible the moment Democrats do—if Democrats are willing to torpedo the filibuster that stands in the way of civil rights.

In the meantime, as Sargent concluded, if Republicans don’t like a Democratic redistricting counteroffensive, too bad. This is the world they built. And if they want out of it, the door is open. Democrats will be waiting on the other side with a bill to end the chaos.

This is not going to be an easy fight, nor a quick one. The other side never wanted a multiracial representative democracy. Chief Justice John Roberts prepared 44 years for his moment. He was patient, methodical and willing to lose battles he knew he would eventually win on a different battlefield. Conservatives built the Federalist Society, captured the courts and executed a plan that most of their opponents didn’t take seriously until it was nearly complete.

Democrats now understand what the plan was. They know what it took and how long. And they now also know, thanks to California and Virginia, what fighting back looks like. Other states, particularly New York, Wisconsin, Pennsylvania and Minnesota, must now take up the banner.

It’s time for Democrats to finish the fight that the right-wing radicals began.