Bench Memos

NRO’s home for judicial news and analysis.

Roberts, Quotas, and the Voting Rights Act


Law professor Richard L. Hasen argues in a Los Angeles Times op-ed today that Roberts’s DOJ records from the early 1980s show that he was “hostile to expansive voting rights legislation.” What Hasen means by this inflammatory phrase is that Roberts and the Reagan administration opposed a change to section 2 of the Voting Rights Act–the adoption of the so-called “effects” test–on the ground that it would establish a racial quota system for electoral politics, “a notion we believe is fundamentally inconsistent with democratic principles.”

Hasen does not make any effort to refute Roberts on the merits. Instead, he asks: “How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts’ position had prevailed in 1982?” Similar questions can, of course, be asked of any racial quota. Posing the question hardly suffices to resolve the broader question of the legitimacy of quotas.

Hasen also raises the specter that, if/when Congress reauthorizes the preclearance provisions of section 5 (which are set to expire in 2007), Justice Roberts might rule that the reauthorization is unconstitutional. Why, Hasen asks, given Roberts’s views on section 2, would “he look charitably on a renewed Section 5″? The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 “are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.”

On civil rights, the real battle between Roberts and his critics was and is over racial quotas. Scaremongering, distortions, and misplaying the race card should not be allowed to obscure that.

Roberts’s documents show that he embraced the “bedrock principle of treating people on the basis of merit without regard to race or sex.” The Left’s vision, as Roberts recognized way back then, treats people not as individuals but as members of castes or social groups and focuses “on advancing particular groups as groups.”


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