Alabama ruling demolishes John Roberts’ ‘political actors’ claim
It was already hard to take Chief Justice John Roberts seriously when he said recently that Supreme Court justices aren’t “political actors.” Tuesday night’s party-line ruling helping Alabama Republicans gain an additional congressional seat in the midterms is only the latest evidence of his court’s partisanship.
When Roberts made the comment last month, he was part of the GOP-appointed supermajority that had just issued the Louisiana v. Callais ruling, which Justice Elena Kagan’s dissent for the Democratic appointees said marked the court’s “now-completed demolition of the Voting Rights Act.”
Yet even that demolition didn’t mandate Tuesday night’s ruling in Allen v. Milligan, in which the majority blessed Alabama’s use of a congressional map that a three-judge panel that included two Trump appointees had found not only satisfied Callais’ new strict test but also was illegal for the separate reason that it intentionally discriminated against Black Alabamians.
A sign that the Roberts Court was nonetheless motivated to use Callais to help the Alabama GOP in this contentious election season came last month when, right after Roberts made his “political actors” remark at a judicial conference, the majority ordered the Alabama lower court to reconsider its ruling “in light of” Callais. Justice Sonia Sotomayor’s dissent from that reconsideration order said there was “no reason” for it, as she emphasized that the lower court had separately found intentional discrimination irrespective of Callais.
The court “unceremoniously discards the District Court’s meticulously documented and supported discriminatory-intent finding and careful remedial order without any sound basis for doing so and without regard for the confusion that will surely ensue,” the Obama appointee wrote in dissent from the May 11 reconsideration order. She pointed out that the lower court “remains free on remand to decide for itself whether Callais has any bearing on its Fourteenth Amendment analysis or if its prior reasoning is unaffected by that decision.”
Indeed, the three-judge panel went on to reaffirm its finding that the state’s desired map was illegal. “We emphasize that because of the exceptional public importance of this matter, we carefully reviewed the extensive evidentiary record in these cases with fresh eyes in light of Callais,” the panel wrote on May 26.
But the three judges (again, two of whom are Trump appointees) said they “cannot see our way clear to requiring Alabamians to cast their votes in the 2026 elections under a districting plan tainted by intentional race-based discrimination.”
That wasn’t a problem for the Supreme Court majority, which on Tuesday night granted the state’s emergency appeal from the latest panel ruling.
Unlike many other shadow docket orders, the majority provided some explanation for its action in an opinion. The majority said, in part, that the panel “departed from Callais” and also “did not heed the presumption of legislative good faith” in finding a discriminatory motive behind the state’s chosen map.
In her dissent for the Democratic appointees, Sotomayor said the majority chose a path that risks a “chaotic election” that will be held with “a never-before-used congressional map that intentionally discriminates against Black Alabamians, that Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials to change the voter registrations of hundreds of thousands of voters in just days at best, a task that Alabama previously represented would take months.”
Joined by Kagan and Justice Ketanji Brown Jackson, she said the majority’s choice “disregards both democratic values and the rule of law.”
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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