Can the marriage of “two great ideals…democracy and racial equality” survive the Supreme Court?

In September 2025, John Roberts Jr. will mark the 20th anniversary of his confirmation as Chief Justice of the United States. Roberts and his conservative colleagues on the court thus far have etched legacies in a number of areas of the law, but only one has major implications for democracy’s future.

Most casual observers of the Roberts Court could name at least one of its legacies, which include eliminating women’s nearly half-century right to abortion; creating immunity from criminal prosecution for a president’s official acts; defining and expanding Second Amendment gun rights; broadening the role of religion in the public sphere; and increasing corporate money in elections.

Less at the front of the casual observer’s mind is the conservative majority’s weakening of the Voting Rights Act of 1965 (or VRA). The act has been called “the crown jewel of the civil rights movement.”  Justice Elena Kagan once wrote, the act “represents the best of America. ... It marries two great ideals: democracy and racial equality.” 

There is some irony in the fact that as the VRA celebrates its 60th birthday year, two challenges at the Supreme Court could be its undoing after being extended by Congress multiple times, the last in 2007 for another 25 years.

The VRA was signed into law by President Lyndon B. Johnson. The act prohibits all levels of government from erecting barriers to voting because of race or ethnicity. It ended such discriminatory barriers as poll taxes and literacy tests. In addition to other requirements, Congress provided two basic ways to enforce the act.

Section 2 prohibits voting standards, practices or procedures that discriminate on the basis of race, color, or membership in a language minority group. That prohibition applies nationwide. 

As a young lawyer in the Reagan Administration, Roberts lobbied hard for Congress to require intentional discrimination to prove a Section 2 violation– a high hurdle. But Congress balked and, instead, said a plaintiff could establish a violation if the evidence showed that, in light of the "totality of the circumstance of the local electoral process," the standard, practice, or procedure being challenged had the result– or effect– of denying a racial or language minority an equal opportunity to participate in the political process.

Section 5 of the act required jurisdictions with a history of racially discriminatory voting practices to get approval or preclearance of any changes in voting practices or procedures from the Department of Justice or a federal district court in Washington, D.C. The act contained a coverage formula for identifying those jurisdictions subject to preclearance.

The most consequential blow to the VRA by the Roberts Court came in 2013. In a 5-4 decision written by Roberts, the majority struck down the coverage formula in Section 4 which, in turn, neutered Section 5.

Roberts claimed that America had changed, and federal supervision of the covered jurisdictions was no longer needed. Shortly after the decision in Shelby County v. Holder, several states previously subject to preclearance imposed voting policies that likely would not have gained approval under Section 5.

Section 2 has had ups and downs in the Roberts Court. But in 2021, in a 6-3 decision, the conservative majority upheld a challenge to two Arizona voting policies: criminalizing ballot collection and a rule invalidating ballots cast in the wrong voting district. A federal appellate court had struck down both policies, writing that one was enacted with discriminatory intent and the other disproportionately burdened Native American, Black, and Latino voters.

Justice Samuel Alito wrote the majority opinion in Brnovich v. Democratic National Committee upholding the challenged policies. But importantly, he created, for the first time, a list of “guideposts” for Section 2 challenges that effectively raise the bar for plaintiffs challenging future discriminatory voting practices. 

Last term, the Justices heard arguments in a Louisiana case involving Section 2 and 14th Amendment equal protection challenges to the state legislature’s creation of a second majority Black congressional district in its 2024 redistricting map. The court was unable to resolve the case, and it ordered reargument in the new term on Oct. 15.

Justice Clarence Thomas dissented from the reargument order, insisting as he has for decades that Section 2 violates the Constitution because it requires the consideration of race in drawing districts to prevent disproportionate impacts on certain groups. He views the act  as in an “intractable conflict” with the 14th Amendment’s equal protection clause.

The Louisiana case always had the potential for a major ruling on Section 2 with political consequences for control of the U.S. House of Representatives. But the Justices appeared to up the stakes even more when in August they ordered the parties to brief whether Louisiana’s drawing of a second majority-minority district violated the 14th or 15th Amendments. Court scholars saw the briefing order as directly targeting Section 2’s constitutionality.

The League of Women Voters has described the case as having “massive implications for voting rights and democracy.”

The Louisiana case has overshadowed a second case at the court with huge implications for voting rights and Section 2. A federal appellate court in May ruled that private citizens and groups could not bring Section 2 lawsuits– despite decades of their doing so. The argument is that the VRA does not contain language granting “a private right of action” and only the government may sue to enforce Section 2.

The Brennan Center for Justice reported that “individuals and groups have brought nearly 93 percent of Section 2 cases over the last 40 years.” Accepting the federal appellate court ruling, voting rights advocates say, would effectively end Section 2 enforcement because the federal government does not have the resources to pursue the many claims.

In July, the Supreme Court put the ruling by the federal appellate court on hold while it considers whether to review the case– Turtle Mountain Band of Chippewa Indians v. Howe.

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.