Roberts And Voting Rights

In the New York Times today Robin Toner has another of the long, familiar articles mining the Reagan-era memos of Judge Roberts for evidence that he opposed the liberal version of civil rights, complete with the anguished lamentations of today’s liberals (Kennedy: “a rather cramped view” of voting rights; John Lewis: “I think the senators on both sides should really grill him on not just his commitment to the Voting Rights Act, but his understanding of what the fight was all about – the spirit of the act, not just the letter.”)

It is a measure of the depth of our partisan divide (as I have just discussed, here and here) that the Roberts positions described and quoted by Toner are regarded as anathema by liberals while conservatives will find them refreshingly appealing. Regarding Congress’s ultimately successful effort to overturn Mobile v. Bolden by expanding the Voting Rights Act so that it substituted an “effects” for an “intent” test in determining discrimination (which in turn was redefined as “vote dilution”),

[Roberts] argued, according to a January briefing paper to prepare Attorney General Smith for Congressional testimony, that the House bill would essentially “establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles.” He added that “at-large systems of elections and multimember districts would be particularly vulnerable to attack, no matter how long such systems have been in effect or the perfectly legitimate reasons for retaining them.”

He drafted an op-ed article for Mr. Smith warning that the bill would “gradually lead to a system of proportional representation based on race or minority language status.” And he prepared Mr. Smith for a meeting at the White House with a memorandum that declared: “The president’s position is a very positive one and should be put in that light. He is for the Voting Rights Act and wants to see it extended.”

If Supreme Court justices were evaluated on their ability presciently to predict the effects of legislation, Roberts would be approved by acclamation.

Say What?