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In 1982, when the Voting Rights Act was up for reauthorization, the Reagan Justice Department had a goal: preserve the VRA in name only, while rendering it unenforceable in practice. A young John Roberts was the architect of that campaign. He may soon get to finish what he started.
Last month, at the oral argument in Louisiana v. Callais, a majority of the conservative justices seemed to signal their willingness to forbid any use of race data in redistricting. That could lead to the end of the VRA’s Section 2 protections for minority voters, and allow states across the South to redraw congressional districts currently represented by Black Democrats into whiter, more rural, and more conservative seats, potentially before the 2026 midterms.
A central question of the case, hotly debated during oral arguments, is whether Section 2 should prohibit election laws and procedures that have a racially discriminatory effect, or just those passed with clear racially discriminatory intent. Roberts almost certainly had flashbacks. This is the same question that was at the center of the 1982 reauthorization fight. Back then, the future chief justice’s job was to design the Department of Justice’s VRA strategy.
When Roberts first arrived at DOJ in 1981, fresh off a clerkship for William Rehnquist at the Supreme Court, he was assigned two important portfolios: prepping Sandra Day O’Connor for her confirmation hearings and voting rights. O’Connor sailed through the Senate. The VRA would be more contentious: A 1980 Supreme Court decision in City of Mobile v. Bolden had required plaintiffs making a Section 2 claim to prove that lawmakers had racial-discrimination intent. That’s difficult to demonstrate, and it brought nearly all Section 2 litigation to a halt.
[Read: This is the presidency that John Roberts has built]
Civil-rights groups, Democrats, and moderate Republicans wanted to use the VRA reauthorization to override Mobile and clarify that Congress clearly meant to remedy all racially discriminatory effects. The Reagan administration was divided. Moderate Reaganites did not want to battle over the landmark law, which was popular. Ideological conservatives within DOJ spoiled for a fight. They were content to extend the act, just so long as it was impossible to use. Roberts led the way.
Roberts’s papers from this era, housed at the National Archives, show his determination and dedication. They include memos and talking points, draft op-eds, scripted answers for bosses to deliver in meetings and before Congress, and presentations he gave to senators and Hill staff. These files show how Roberts devised the messaging strategies that made it possible for the administration to claim it supported the VRA, while actually helping to neuter it—an approach he has since mastered as chief justice.
When Roberts started as a special assistant to Attorney General William French Smith at DOJ in August 1981, pragmatic White House aides who wanted to avoid the messiness of a voting-rights fight appeared to hold the winning hand. Earlier that summer, the conservative representative Henry Hyde had experienced something of a conversion after public hearings across the South, reversed his own position, and urged his old friend Ronald Reagan to come aboard. Reagan addressed a national NAACP convention that June and vowed he would never allow barriers to be placed between any citizen and the ballot box. By August, he told The Washington Star that he would back whatever 10-year reauthorization Congress sent him, punting the question of intent versus effects to lawmakers.
But that fall, as the White House planned to release a statement confirming that Reagan would support whatever compromise Congress reached, DOJ pushed back hard. The attorney general demanded a meeting with Reagan. Following the meeting, Reagan embraced two of Smith’s proposals—maintaining the intent standard, and making it easier for localities to escape Section 5 preclearance, which required all bodies in covered states to get approval before making any changes to election law or procedures. (Roberts would effectively end that requirement with his decision in 2013’s Shelby County v. Holder, neutering the law by freezing the formula that determined which states were covered.)
Reagan now declared the effects standard “new and untested”—a position that hewed almost verbatim to Roberts’s talking points. In his end-of-year news conference, Reagan channeled Roberts again. The effect rule “could lead to the type of thing in which effect could be judged if there was some disproportion in the number of officials who were elected at any governmental level,” Reagan said. “You could come down to where all of society had to have an actual quota system.”
[Listen: If the Voting Rights Act falls]
This is almost exactly what Roberts would write in his December 1981 memo titled “Why Section 2 of the Voting Rights Act Should Be Retained Unchanged”: “Incorporation of an effects test in §2 would establish essentially a quota system for electoral politics.” Then came the line that could be seen as defining decades of future jurisprudence: “Violations of §2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.”
Roberts inspired Reagan’s shift. His words and ideas made up the core of the president's statements. He placed the administration into an intent-versus-effects fight that Reagan’s political counselors thought unnecessary.
The next battle would be before the U.S. Senate. Roberts would script that too.
The Senate debate had kicked off with a mid-November New York Times op-ed from Vernon Jordan, then head of the National Urban League, titled “Diluting Voting Rights.” Roberts must not have liked what he read. Reagan’s endorsement of the intent standard “was not only a political mistake,” Jordan wrote, but a “disservice” to conservatism. Then the civil-rights leader lowered the boom. Intent to discriminate, he wrote, is impossible to prove.
“Local officials don’t wallpaper their offices with memos about how to restrict minority-group members’ access to the polling booth,” Jordan wrote. “Discriminatory effects, however, are clear to all.” Proving intent, he argued, shifted and required the burden of proof and required evidence that “would be virtually impossible to assemble.”
“The President’s endorsement of the Voting Rights Act,” he concluded, “is a sham.”
Roberts quickly drafted a counterattack and circulated it to DOJ higher-ups. The pugnacious response insists that the intent test would make a “radical change” to the Voting Rights Act and slams the House version as a “radical experiment.” Roberts conceded that local officials might not wallpaper their offices with racist memos, but insisted that “circumstantial evidence” would still suffice, “as Mr. Jordan presumably knows.”
“The only ones who could be disappointed by the President’s actions,” Roberts held, “are not those truly concerned about the right to vote but rather those who, for whatever reason, were simply spoiling for a fight,” fiercely attacking the integrity of a man who had devoted his life to the struggle for civil rights.
Roberts’s audience wasn’t civil-rights leaders or New York Times readers. The DOJ team needed to keep the number of Senate proponents for the effects test below 60, the threshold for defeating a filibuster. Senator Strom Thurmond chaired the Senate Judiciary Committee. Opponents of the VRA’s effects provision felt confident that they could engineer a host of obstructionist feints and amendments to block its passage. So it shocked them when Senator Charles Mathias, a Republican, filed his bill, which included the effects test, with 60 co-sponsors. If the coalition of 40 Democrats and 21 Republicans held, the reauthorization would pass easily. Thurmond sputtered in disbelief when informed of the number: “They must not have read the bill!”
A stunned Roberts prepared to fight on. “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,” Roberts wrote in a January 1982 memo to the attorney general. Roberts’s allies were segregationists, his math was bad, and his political instincts worse, but he urged his troops onward, confident in his own assessment of Congress. “Many members of the House did not know they were doing more than simply extending the Act, and several of the 61 Senators have already indicated that they only intended to support simple extension,” he wrote. “Once the senators are educated on the differences between the President’s position and the House bill, and the serious dangers in the House bill,” Roberts insisted, “solid support will emerge for the President’s position.”
Roberts worked every angle. The Senate Judiciary Committee was a chance to educate senators. The day before the attorney general was scheduled to testify, the administration abruptly asked for a delay. Roberts remained focused. On January 25, 1982, he sent Smith a memo of likely questions and suggested answers to help guide his remarks. In his behind-the-scenes brief to his boss, it’s apparent that Roberts was not willing to countenance a single improvement to the VRA.
In the brief, in detailing his objections to the effects test, Roberts supplied a tendentious account of supposed open-minded inquiry that pointedly ignored the testimony of experts and misrepresented the words of civil-rights leaders. He counseled Smith to tell Congress that “in reviewing the Voting Rights Act last summer in the course of preparing recommendations to the President, I met personally with scores of civil rights leaders.” Roberts wrote, “The one theme from these discussions was clear: the Act has been the most successful civil rights legislation ever enacted and it should be extended unchanged. As the old saying goes, if it isn’t broken, don’t fix it.”
Here Roberts was merely parroting an earlier talking point he’d circulated during the House debate; it had nothing to do with the actual views of civil-rights leaders who, in fact, were determined at all costs to repair the defective Mobile decision.
His memo encouraged Smith to double down on loose talk of racial quotas before Thurmond’s committee, contending without any empirical backing that the effects test “would establish a quota system for electoral politics”—here he underlined quota system—which “we believe is fundamentally inconsistent with democratic principles.”
The next day, January 26, Roberts again urged Smith to stiffen his resolve on the effects question as the attorney general prepared to begin his testimony. Roberts also attended a crucial meeting at the White House where DOJ officials sought to shore up Reagan’s opposition to the effects test—“once and for all,” a seemingly frustrated Roberts wrote.
[Read: The decision that could end voting rights]
In this final prehearing memo, the young aide exhorted his boss: “I recommend taking a very positive and aggressive stance.” Roberts certainly followed that advice; he had grown weary of all the bureaucratic skirmishing with Reagan’s political team, and demanded that the White House “actively work” to enact DOJ’s preferred policy. He insisted his position could be sold politically. “The President’s position is a very positive one,” Roberts wrote, repeating his pet mantra. “If it isn’t broken, don’t fix it.”
In his memos, Roberts maintained that the effects test 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.” Roberts also again sought to tie opposition to the effects test to the administration’s overall stance on race and affirmative action. “Just as we oppose quotas in employment and education, so too we oppose them in elections.” Roberts concluded, imperiously, “It is very important that the fight be won, and the President is fully committed to this effort. His staff should be as well.”
No one could question Roberts’s commitment. That day he sent Smith yet another memo, a two-page response to an editorial in The Washington Post that endorsed the effects test. Then, in an early February 1982 memo to his direct boss, Brad Reynolds, Roberts offered handwritten edits on a draft op-ed. “I do not agree with the Attorney General that it is necessary to ‘talk down’ to the audience,” Roberts proclaimed. “The frequent writings in this area by our adversaries have gone unanswered for too long.”
Roberts remained hopeful that his position would prevail in the Senate, either by putting the filibuster back in play, enabling a presidential veto, or slowing things down sufficiently in order to gain a negotiating cudgel as the VRA neared expiration. Whatever obstructionist vision beguiled him most, Roberts worked the Senate hard. He assembled clips of op-eds aligned with his side along with his “Why Section Two of the Voting Rights Should Be Retained Unchanged” essay to be sent to friendly offices. He ran all this past Ken Starr—then a counselor to Smith, 16 years before the Monica Lewinsky investigation—with a handwritten note penned daringly on the attorney general’s letterhead: “Ken—possibilities to distribute to senators.” He signed it simply “John.”
Orrin Hatch’s Judiciary subcommittee—after five weeks of hearings focused almost entirely on intent versus effects—began to fall into line. It preserved the intent standard in the Senate bill, which then moved to Thurmond’s kingdom, the full committee. By then, Senator Bob Dole had seen enough. The Kansas Republican was determined that the GOP be the party of Lincoln, not Thurmond. He quietly settled the matter: Section 2 would carry the effects standard. The language of the accompanying Senate report could not have been clearer. Racial effects would be enough. Dole informed Reagan that DOJ could continue to fight—but they’d lose. He had at least 80 votes.
Back at Justice, Roberts’s band of brothers didn’t seethe so much as they threw up their hands in resignation. “The Reagan administration took the principled view over the politically advantageous,” Michael Carvin, the famed conservative litigator who served at DOJ with Roberts, told me, “and then they eventually caved.”
A different strategy would be needed. That April, as Roberts and others at DOJ battled, young conservative law students, joined by mentors such as Robert Bork and Antonin Scalia, would have the first national gathering of what would become known as the Federalist Society at Yale Law. Conservatives came to a new conclusion: If you want to change the law, change the judges.
More than two decades later, about to ascend to the high court, Roberts would brush aside concerns about his views on voting rights by suggesting that the 1982 fight was a youthful folly, and that he had just been doing his job. “Senator,” Roberts told Russell Feingold, a Wisconsin Democrat, “you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the attorney general on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point, and it was my job to promote the attorney general’s view and the president’s view on that issue. And that’s what I was doing.”
[Read: How the Court became a voting-rights foe]
This was not entirely accurate. Once again, Roberts was masterfully playacting support for a law he worked to thwart. The effects standard came from DOJ. It was not originally the policy of President Reagan. It was not the president’s view. Roberts had done far more than what he claimed under oath. And when he and fellow young Reaganite Samuel Alito arrived at the Supreme Court, the arguments that had once lost in Congress would now carry the day—not because things had actually changed in the South, but because the arena moved to the judiciary.
Now John Roberts doesn’t need the president, 60 senators, or 218 representatives. Four like-minded conservatives on the Court would be enough. It appears there are five—plus Roberts himself.
This article was adapted from David Daley's book, Antidemocratic.
