Where John Roberts is unlikely to compromise

Roberts' views, while generating tension with his colleagues, made a significant difference in the law, particularly by reducing the protections for the right to vote. This trend is likely to continue as the Supreme Court re-examines the electoral rules and the distribution of constituencies, as well as affirmative action taken by universities. A case challenging Harvard's racial admission policy may soon be on the right track.

Last week, the court heard a dispute over Virginia's racial gerrymandering and on Tuesday a related issue about gerrymandering supporters in Maryland and North Carolina cases. Other litigation related to the vote is being referred to the courts, including about state rules on voter identification, restrictions on postal voting and new limits on voting time.

The nine-member council has developed: while Roberts holds the ideologically decisive position since Justice Anthony Kennedy's retirement, he is a more consistent Conservative than Kennedy. Kennedy, for example, is open to racial discrimination over time, voting in 2016 to defend a program at the University of Texas at Austin.

Roberts has an institutional interest in ensuring that the court does not tilt too far to the right and he has already indicated that he might attempt to reach a consensus beyond the ideological divide. But this will probably not happen with the difficult question of race, where his views are rooted.

Racial discord of the day

Roberts, who is now 64 years old and in his 14th year as Chief Justice, reached his majority during civil rights troubles in the 1960s and 70s. He grew up in the unique community of Long Beach vacation, in Indiana, about 90 km from Chicago. He was 13 when riots erupted in that city after the assassination of Martin Luther King Jr. on April 4, 1968.

But he was isolated from the urban conflicts and any other racial discord of the day, living in an almost wholly white community and attending an elite boarding school near his home.

Roberts' father was a manager at a steel plant in Bethlehem and witnessed growing tensions as a result of the federal government's efforts to end discrimination after the passage of the 1964 Civil Rights Act. The Justice Department targeted large steel companies as well as United Steelworkers of America, alleging that they had conspired to keep blacks in low-skilled jobs in factories. A series of prosecutions resulted in court-supervised pacts whereby racial minorities progressed to better jobs.

Roberts' life in northern Indiana has shaped his outlook.

At The Light School, among very close and enduring friends, Roberts later said that he had learned the value of persistence.

"No quality is more essential to realize your hopes for the future," he told school graduates in 2013. "And unlike many other keys to success – intelligence, talent, physical abilities, health, appearance, where you were born, what kind of family, luck – persistence is entirely, entirely under your control. "

"The slogan" Press on "has solved and will always solve the problems of the human race," said Roberts, who has shown perseverance while having the chance to count on other benefits.

When he graduated in 1973, Roberts was the first in his class and the first graduate of The Light at Harvard.

The debate on positive actions – related to student admissions, as well as to faculty and staff positions – was running through the Harvard campus in the 1970s, when it was there. Roberts was not politically active at the time and later stated that he was upset by some of the liberalism of the time.

At the national level, the case of Allan Bakke, a 35-year-old white man who was twice rejected for admission to the University of California at Davis School of Medicine, was heading to the Supreme Court. This led to the 1978 decision in the Regents case of the University of California v. Bakke, allowing schools to consider race as a factor of admission, but not to allow quotas.

Roberts graduated from Harvard Law School in 1979 and, after two judicial internships, one for Judge William Rehnquist, began working for Reagan. Documents dating from that time reveal that he was an aggressive lieutenant in the Republican administration's efforts to reduce the scope of the federal law on the right to vote and racial remedies.

"This is an exciting time for the Department of Justice, where we take seriously all that has been taken for granted for so long," he wrote to Justice Henry Friendly, for whom he had previously worked as legal assistant Rehnquist.

Roberts' notes show that he often tried to conduct the conversation. He was ready to warn colleagues that he believed insufficiently engaged in Reagan's agenda. Even in his first few months at the Department of Justice, he alerted the Attorney General of what he saw as inconsistencies in agency practices related to the racial new policies of the "color-blind" administration.

It was at this time that Roberts comforted his view that race-related remedies of an individual could be as repulsive as racial discrimination in the first place.

Later, when Roberts was Assistant Solicitor General at George H.W., the Bush administration developed arguments against school district integration projects and government preference policies for blacks, Hispanics, and other minorities. He rejected the group-based appeals and considered that persons facing prejudice should be able to prosecute only for specific cases of discrimination.

"Racial balance," as he called practices favoring blacks and Hispanics to compensate for past discrimination, was unconstitutional, he said, even in the name of diversity.

View of Brown v. Board of Education

Less than a year after his appointment as Chief Justice, Roberts expressed a similar sentiment. "It's a sordid affair, it divides us by race," he wrote in a 2006 voting rights case.

The following year he exhibited his ideas about race as part of a school integration conflict involving schools in Louisville and Seattle. Twinned cases are the result of attempts by school districts to thwart the return of school segregation caused by whites and blacks living in different parts of a city.

Roberts voted in favor of the cancellation of the projects, expressing a clear, albeit controversial, view of the Supreme Court's intention in the Brown v. Canada case. Board of Education. He added that the landmark decision of 1954, which invalidates the separate but equal doctrine, extends to any program separating children from their race, including for their integration.

Before "Brown, schoolchildren were told where they could and could not go to school depending on the color of their skin," Roberts wrote. "In these cases, school districts have not had the daunting task of demonstrating that we should allow this again – even for very different reasons."

In this case, and later involving positive action at the University of Texas at Austin, Roberts questioned the value of diversity in the classroom.

Kennedy, who was separating from Roberts on this point, felt that diversity could be an essential government objective. In the Louisville and Seattle conflicts, Kennedy said there was no evidence that racial classifications were the only way to achieve this diversity. He voted in favor of invalidating district programs, but without adopting Roberts' logic. (The four dissenting judges – all Liberals – argued that the two school districts sufficiently motivated the plans for integration.)

"Fifty years of experience since the Brown v. Board of Education judgment should tell us that the problem before us challenges such a simple solution," wrote Kennedy. "The hope persists, that is, the race should not count, the reality is that too often."

Kennedy has been one of the judges over the years who challenged Roberts' approach, deemed unattainable in a country still rife with racial divisions.

Voting Rights Act

To date, the dispute over Shelby County, Alabama, has been Roberts' most decisive decision regarding racial prohibition, prohibiting federal officials from screening potentially discriminatory voting rules from states such as the United States. Alabama with a history of racial bias.

President Lyndon Johnson signed the Voting Rights Act in August 1965 as civil rights protests and police violence struck the South. One of the most troubling events that forced the adoption of the law occurred on March 7, 1965 on the Edmund Pettus Bridge in Selma, Alabama. During the so-called Bloody Sunday, Alabama state soldiers wielding sticks and whips attacked some 600 militants who were walking slowly and silently through the streets of Selma.

The new law dealt with discrimination in two main ways: by permitting prosecution of the government's direct biases in electoral practices, and by obliging some states and localities to obtain federal approval before instituting it. new electoral procedures.

This last "preclearance" provision, the result of a formula dating back to the 1960s, was challenged in the 2013 case in Shelby County. Writing for the majority, Roberts said the provision was out of date.

"Our country has changed," he said, "and while any racial discrimination in the vote is excessive, the Congress must ensure that the legislation adopted to address this problem takes into account the current situation."

His decision echoed his early days in the justice system when, as a lawyer for the Reagan administration, he felt that the federal voting rights act was overly interfering with activities that states should be able to regulate.

Roberts concluded that the problems that the Voting Rights Act was designed to fix no longer existed.

"In 1965, states could be divided into two groups: those who had recently passed voting tests and whose enrollment and participation numbers were low, and those who did not have these characteristics" he wrote in Shelby County. "Today, the nation is no longer divided in this sense, and yet, the voting rights law continues to treat it as if it were it."

"The sad irony of today's decision lies in its total inability to understand why the VRA has proven effective," wrote Ginsburg. "The Court seems to believe that the success of the VRA in the elimination of specific existing devices in 1965 means that preclearance is no longer necessary. (…) In reality, the evolution of the Discrimination by voting in more subtle second-generation barriers provides strong evidence that an effective remedy such as preclearance remains essential to protect the voting rights of minorities and prevent backtracking. "

Joining the other three liberals, Ginsburg wrote: "Throwing preclearance when it has worked and continues to work to end discriminatory changes, it's like throwing your umbrella in a rainstorm because you do not get wet. not".

The Chief Justice invoked a different metaphor when he criticized Ginsburg and the other dissidents for drawing attention to current racial discrimination in Alabama.

"Dissent … turns to the record to argue that, in light of the voting discrimination in Shelby County, the country can not complain about the provisions that subject it to preclearance," observed Roberts. "But that comes down to saying that a driver who stopped under a policy to stop all the redheads can not complain about this policy if it 's going on. says Shelby County says the coverage formula is unconstitutional in all its applications. "

Overall, Roberts continued to try to narrow the scope of the Voting Rights Act and always insisted that complaints of discrimination should be made by individuals in specific circumstances and not by groups of people because of the color of their skin.

In the case of blatant individual prejudices, Roberts has taken a very clear position. For example, in the case of Foster v. Chatman's 2016, Georgian prosecutors had deliberately excluded blacks from a jury, placing a "B" next to the name of each prospective juror to be struck out. The Supreme Court ruled 7-1 for the accused who had contested the bias, and Roberts wrote the majority opinion.

A similar case of discrimination between jurors, resulting in the elimination of jurors from an accused of murder by a Mississippi prosecutor, was recently heard, the case of Flowers v. Mississippi.

New positive discrimination test at Harvard

Roberts' rejection of ambiguities in the affirmative action programs that a narrow majority has maintained since the 1978 Regents case at the University of California Bakke did not raise any ambiguity. A major test of this landmark, involving Harvard, is now before a federal lower court and probably intended for the high court.

Once the judge has ruled the case, which had been the subject of a three-week trial last year and a final hearing in February, any appeal would be first brought before the 1st US Federal Court of Appeal, then before the Supreme Court.

Roberts' past opinions suggest that he would be sympathetic to the challengers case. It's a controversy over a positive action that led to one of the most recent race-to-court crashes between Roberts and Sotomayor, the first Hispanic justice.

"Race counts for the vision of a young man's society when he spends his adolescence watching others tense at his passing, no matter what neighborhood he grew up in," she writes. "Race counts for a young woman's sense of self when she declares her hometown, then she is told:" No, where do you really come from? " "It does not matter how many generations his family has established in the country."

Sotomayor, who at the beginning of her term spoke publicly about how she sometimes felt like she was not at court, then said, "Race is important because of insults, sneers, judgments. silent that reinforce this most disabling thought: "I do not belong here. "

She returned Roberts' adage on the best way to end racial discrimination ("stop discriminating on the basis of race") by stating that the best way "is to s & # 39; express openly and honestly on the subject of race and apply the Constitution with open eyes to the regrettable effects of centuries of racial discrimination. "

Roberts took the unusual decision of writing a statement, to which no other judge joined, to respond to Sotomayor. "People may disagree in good faith on this issue," he said, saying it was "more damaging than beneficial to question the openness and openness of those who are found on both sides of the debate ".

And since he's been doing this since he started working as a lawyer in Washington, Roberts has argued that remedies against race can also "do more harm than good."

This has strengthened the dividing line that can be drawn from Roberts' position as a young attorney within the Reagan administration to his views at the central seat of the court.