Neoconservatism and the Roberts Court

How ideological shifts have shaped the interpretation of voting rights

This essay was written by Ben Blitz - a high school student from New Jersey, USA. 

In 1965, the federal government took an unprecedented action to protect African Americans’ right to vote with the passage of the Voting Rights Act. Nearly fifty years later, that very protection that was established was unraveled, not by violent oppression, but rather by a 5-4 decision from the Supreme Court. After the fifteenth amendment was passed, granting universal male suffrage, many Southern states enacted qualifications to prevent African American men from voting. These qualifications included literacy tests, poll taxes, and grandfather clauses in order to disenfranchise black voters. Jim Crow laws and intimidation continued to keep voter registrations among African Americans at extremely low levels well into the twentieth century. By the early 1960s, many civil rights activists pushed for legislation to secure voting rights, which became a national issue under President Lyndon B. Johnson, who banned literacy tests and other discriminatory qualifications and practices. Specifically, Section 4(b) and Section 5 of the Voting Rights Act of 1965 (VRA) established a federal check on historically discriminatory states, targeting systematic racial discrimination in voting. In the decades following the passage of the VRA, a neoconservative movement emerged, especially during the Reagan administration, that advocated for limited government, states’ rights, and skepticism toward federal intervention in social policies. Neoconservatives often framed federal oversight as overreaching, specifically on race-based laws. This ideology was increasingly influential in the judicial branch, as Republican presidents appointed justices to the Supreme Court who represented Neoconservative ideals. Neoconservatism, with its emphasis on states rights, colorblind legal interpretations, and skepticism toward federal oversight, significantly influenced the Robert’s Court decision in Shelby County v. Holder. By framing federal voting protections as laws that overreach state sovereignty, the Court’s majority opinion reflected neoconservative principles, while the dissenting judges were more grounded in progressive ideals. This fundamental ideological divide not only shaped the decision in Shelby County v. Holder but also will continue to affect future debate over voting rights and qualifications on a state level.

The Voting Rights Act of 1965 (VRA) was created as a direct response to dismantle the disenfranchisement caused by the Jim Crow era, but its broad intervention into state level elections directly contrasted neoconservative ideals that rejected federal oversight as excessive. In order to block African-American political participation, states used legal tactics such as poll taxes, literacy tests, and voucher requirements. There were several Supreme Court cases before 1965 with the goal of banning some of these tactics, but they were ineffective to make any real political change. So, throughout the first half of the twentieth century, southern states developed many sophisticated mechanisms to comply with these previous Supreme Court rulings while simultaneously limiting the fifteenth amendment. In its creation, the VRA’s purpose was to effectively enforce the fifteenth amendment through federal oversight and several enforcement mechanisms. These mechanisms included Section 5, establishing preclearance, in which historically discriminatory states had to obtain federal approval in order to change any voting laws. In addition, Section 4(b) created a formula to directly challenge discriminatory law and identify racist and biased practices. As the Brennan Center For Justice explains, “The law fundamentally opened political opportunities for Black and brown communities to participate in all aspects of the political system on an equal basis.” (Crayton) As an effect of the VRA, Black voter registration surged, and hundreds of African-American candidates were elected to office. During the Reagan era, a neoconservative political shift began to take place, arguing that race-conscious laws were no longer needed as they promoted too much federal oversight. Regulating elections was a key focus of the neoconservative movement, with an emphasis on states’ rights. This ideology began to increasingly challenge sections 5 and 4(b) of the VRA, claiming that it unfairly singled out certain states based on bias and outdated methods. The neoconservative backlash of federal oversight set the stage for Shelby County v. Holder, where the Supreme Court used neoconservative ideology to legally destroy the VRA’s core protections.

The legal dispute of Shelby County v. Holder centered on whether Congress had the constitutional authority to use federal oversight on certain states, raising fundamental questions about neoconservativism’s emphasis on states’ rights and the modern importance of civil rights era protections. Alabama, a southern state that historically used discriminatory practices to prevent African-Americans from voting, was significantly affected by the preclearance and the formulas created in the VRA, and looked to protect their own rights. “Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement.” (Oyez) Here, Shelby County is claiming that these specific provisions of the VRA singled out states unfairly for federal oversight based on historical data rather than modern day evidence, which Alabama claimed to be unconstitutional. In this case, the court had to determine whether federal enforcement remained protected by constitution when based on historical data about racial discrimination in voting. The court held that Section 4 of the VRA uses outdated evidence to impose their law that are no longer supported by current day conditions and should therefore be stricken from the VRA. Chief Justice John Roberts, when writing the majority opinion of the court, emphasized that the law’s formula “does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.” (Oyez) Further, Justice Clarence Thomas argued in his concurring opinion that Section 5 of the VRA is also unconstitutional, as there is no longer voting discrimination that defends the use and applicability of this provision. By striking down these sections, the court removed preclearance, setting the stage for a sharp divide regarding constitutional authority in terms of federal oversight across political and ideological ideals, which ultimately would fully be revealed in the majority and dissenting opinions.

The sharply divided majority and dissenting opinions, between conservative and liberal justices, respectively, expose a fundamental ideological dispute in the modern day Supreme Court between neoconservative and liberal philosophies, specifically in their interpretations of federal power, racial progress, and constitutional authority. In the majority opinion, Roberts first emphasizes that the VRA’s reclearance requirement was a “a drastic departure from basic principles of federalism” (Fredrickson) because it violated states’ equal rights, demonstrating the neoconservative ideal to limit federal intervention into state governance. Throughout the majority opinion, Roberts claims that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions” (Fredrickson), as voter turnout was much more equal now than it ever was before (in terms of race). This quote reflects that Neoconservatives often argue that laws focusing on past discrimination are no longer relevant because the original statistical disparity is no longer relevant. As a whole in his opinion, Roberts justifies that Congress overreached in providing federal oversight to states’ unfairly that no longer needed any oversight, ultimately leading these key provisions of the VRA to be invalidated. In the dissenting opinion, Justice Ruth Bader Ginsburg argued in favor of the Congressional authority to implement these provisions of the VRA. Ginsburg, as many liberal leaning justices tend to do, deferred to Congress’s democratic process in matters of civil rights in order to make the best decision for the people, preventing discrimination. Ginsburg rejected the majority’s logic, claiming that “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet” (Fredrickson). Ginsburg’s statement here demonstrates that liberals often emphasize the persistence of systematic inequality and the necessity for federal intervention to protect against racial barriers created by the American government and the laws. Clearly, Ginsburg views the VRA as essential to fulfilling the fifteenth amendment, while neoconservatives view the VRA as the opposite, an unnecessary Congressional overreach. By striking down a key element of the VRA, the neoconservative majority advanced a vision of constitutional colorblindness and state equality, while the liberal dissent emphasized and protected the federal government’s ongoing role in protecting minority rights, ultimately demonstrating a much deeper ideological battle over how justice and equality are best upheld in a continuously changing America.

Just twelve years later, the Shelby County v. Holder ruling has already had measurable negative consequences on the protection of minority voting rights. The 2013 ruling ended all federal oversight in local voting practices and all elections at the local level, directly affecting the decreasing minority voter turnout, which has dropped sharply in comparison to other decades (Harvard Kennedy School Faculty and Research). Thus, the controversial decision of the Supreme Court may have actually stripped decades worth of voting rights progress, as systematic racial discrimination is not being prevented (in terms of voting rights). Clearly, there is a direct and negative correlation between the removal of these key sections of the VRA and minority voting turnouts, highlighting how minority communities are disproportionately affected by this ruling and the neoconservative ideals used. Many efforts are underway to counteract Shelby County v. Holder’s decision, such as the John Lewis Voting Rights Advancement Act. Despite these efforts, it faces many legal hurdles and with the current right leaning government, a change to further protect voting rights is unlikely to occur in the foreseeable future. Further, states previously under federal oversight by the preclearance of the VRA quickly passed restrictive laws for voting in local elections, such as Voter ID laws, a currently controversial law. The future of voting rights depends heavily on the political ideology of both Congress and the Supreme Court. The partisan divide over voting rights is likely to continue, as neoconservative ideals are increasingly used by the legislative and judicial branches under the Trump Administration. Not only is the majority in both the House of Representatives and the Senate right-leaning, but President Trump has also appointed three of the nine current Supreme Court justices, with three other justices being conservatives (that Trump did not appoint), thus, reversing Shelby County v. Holder is extremely difficult and unlikely to occur. Clearly, the Supreme Court’s neoconservative majority may continue to favor state sovereignty over federal oversight, increasing partisan division, and more importantly, limiting voting rights and equal opportunities for minority groups.

Works Cited

1. Crayton, Kareem. 2023. “The Voting Rights Act Explained | Brennan Center for Justice.” Www.brennancenter.org. June 21, 2023. https://www.brennancenter.org/our-work/research-reports/voting-rights-act-explained.

2. Fredrickson, Caroline, and Ilan Wurman. 2013. “Shelby County v. Holder | Constitution Center.” National Constitution Center – Constitutioncenter.org. 2013. https://constitutioncenter.org/the-constitution/supreme-court-case-library/shelby-county-v-holder.

3. “Impacts of the Voting Rights Act and the Supreme Court’s Shelby Ruling.” 2018. Www.hks.harvard.edu. October 26, 2018. https://www.hks.harvard.edu/faculty-research/policy-topics/politics/impacts-voting-rights-act-and-supreme-courts-shelby-ruling.

4. “Shelby County v. Holder.” 2013. Oyez. 2013. https://www.oyez.org/cases/2012/12-96.