Exclusive: How the Supreme Court’s conservatives rebuffed Alabama

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — When the Supreme Court considered the challenge to an Alabama congressional map that shortchanged the state’s Black voters, liberal justices expected the conservative majority to side with Alabama – if not gut the 1965 Voting Rights Act altogether.

Instead, the justices emerged from their first closed-door conference meeting on the case in October 2022 without a solid majority for either side, CNN has learned. Ordinarily, this meeting, held without any law clerks or other staff present, results in a clear understanding among the nine justices of which party will prevail in a case. In the Alabama dispute, sources said, it was far from certain which side would win.

What happened next defied predictions from inside and outside the court. A series of negotiations, most notably between Chief Justice John Roberts and fellow conservative Justice Brett Kavanaugh, transformed what many thought would be a ruling undercutting the Voting Rights Act into a forceful affirmation of the law.

Roberts and Kavanaugh enjoy a decades-old kinship and often confer privately on matters. Most internal debate takes place among all nine justices, whether in regular closed-door sessions or the circulation of memos. But Roberts regularly reaches out to Kavanaugh behind another set of closed doors to understand his views and, as happened here, to secure his vote.

Ambivalent during early internal debate, Kavanaugh eventually gave Roberts enough confidence that he could write an opinion for a majority.

Kavanaugh has since become the focus of Alabama officials who directly flouted the Supreme Court’s June decision and are now seeking another chance before the court.

The dispute centers on maps drawn by the Republican-controlled Alabama legislature that include just one majority-Black congressional district (among a total of seven), despite a 27% Black population in the state. A three-judge US district court found – first in a January 2022 decision – that the legislature unlawfully diluted Black voting power by packing much of the African American population into one district and dividing the rest among other districts. The judges directed Alabama to draw “two districts in which Black voters either comprise a voting-age majority or something quite close to it.”

But the Alabama legislature, after the Supreme Court had affirmed the lower court order, in July again approved a revised map with only one majority-Black district. On Tuesday, Alabama lost another round before that special three-judge court. The state has said it will appeal to the Supreme Court.

“(W)e are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires,” the judges wrote in their Tuesday decision. “The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice.”

Resolution of the case would affect the franchise for Blacks in the heart of the South and ultimately the full makeup of the US Congress. Black voters lean Democratic, and the Alabama fight and other state redistricting battles could influence whether Republicans maintain their slim majority in the US House of Representatives after the 2024 elections.

Based on public statements and court filings from Alabama Attorney General Steve Marshall and Solicitor General Edmund LaCour, the state is counting on Kavanaugh to switch his vote or otherwise assist Alabama in its effort to keep a single Black-majority district.

They may believe they have an inside track behind the scenes, too, according to news reports on officials’ efforts to game out the justices for a second round. The Alabama Political Reporter, a daily news site, wrote in late July that “Republican lawmakers believe their DC connections have ‘intelligence’” that Kavanaugh “is open to rehearing the case on its merits.”

Speculation regarding how Kavanaugh would vote in the future may have little basis in fact. Moreover, the return of the dispute so quickly to the high court would likely give the majority, including Kavanaugh, pause for any reversal of sentiment regarding Voting Rights Act remedies for a state’s dilution of Black voting power.

The attention on Kavanaugh underscores his perceived judicial flexibility – and heightens interest in his vote when the merits of the case were heard last session.

Kavanaugh, appointed by former President Donald Trump in 2018, has demonstrated in some speeches that he prides himself in being conscious of how race permeates the justice system and American life.

In a July public appearance in Minnesota, shortly after the court session had ended, he emphasized his sensitivity on racial issues. Asked about significant cases he’d written over the past five years, he referred to two cases, playing up their racial dimensions. One case from 2020 (Ramos v. Louisiana), he explained, involved “the racist history” of non-unanimous juries, the other, from 2019 (Flowers v. Mississippi), impermissible race discrimination in jury selection.

“Racism has no place in the criminal justice system,” he said.

Kavanaugh has often invoked the fictional character of Atticus Finch, a small-town Alabama lawyer fighting a racist system in “To Kill a Mockingbird,” citing him on the importance of understanding the perspectives of others. Kavanaugh told a Notre Dame law school audience earlier this year, for example, that he keeps a grade-school copy of the book in court chambers.

“On the inside cover, in my handwriting from back then,” he said, “is written the phrase ‘Stand in someone else’s shoes.’ And that’s what (the English teacher) taught us was the lesson of ‘To Kill a Mockingbird.’ And I think to be a good judge, and to be a good person, it’s important to understand other people’s perspectives.”

Supreme Court let Alabama use disputed maps in 2022

The Supreme Court’s decision-making process is private and fluid, so it is difficult for outsiders to know when a majority has coalesced. In the Alabama situation, what is known is that conservatives began with an upper hand, liberals were poised to dissent, and the final 5-4 resolution took weeks to lock in.

The right wing’s control first emerged in early 2022, when five justices, including Kavanaugh, sided with Alabama as it sought to use the map with a single Black district in the November 2022 midterm elections, even though the three-judge panel had said the map unlawfully disadvantaged Black voters.

In lower court proceedings, the panel had heard seven days of testimony and taken hundreds of pages of evidence before concluding that the registered Black voters and other challengers had established that Blacks in the state were sufficiently numerous and geographically compact for a voting-age majority in a second congressional district.

The unanimous panel, comprised of two US district judges appointed by Trump and one appellate judge appointed by former President Bill Clinton, also cited the state’s history of racially polarized voting and that Blacks had less opportunity than other Alabamians to elect candidates of their choice to Congress.

The lower court also noted that the one existing Black-majority district has been represented by a series of Black Democrats since its inception in 1992.

To remedy the existing map, the judges said, the state would have to draw “an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.” That would require, they said, “two districts in which Black voters either comprise a voting-age majority or something quite close to it.”

Alabama immediately asked the Supreme Court to let it keep the disputed map for 2022 elections while it appealed, and the majority obliged on February 7, 2022. With Kavanaugh were fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett.

Roberts, who had for decades been trying to limit the reach of the Voting Rights Act, favoring greater state control of electoral practices, nonetheless dissented from the majority’s decision to permit the map’s use. He was influenced by the lower court judges’ findings regarding Alabama’s discriminatory redistricting.

As Kavanaugh explained his vote favoring Alabama in that February 2022 action, he said there was insufficient time to change maps, without the possibility of “chaos and confusion,” before the upcoming primary and general elections, in May and November, respectively.

To that, the dissenting liberal justices wrote, “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.”

Alabama takes an extreme stance before the justices

When the Supreme Court heard Alabama’s appeal on the merits in October 2022, Alabama Solicitor General LaCour urged the justices to roll back substantial protections of Section 2 of the Voting Rights Act, which forbids practices that deny the right to vote on account of race.

He said that any remedy must have a “race neutral” benchmark lest it violate the Constitution’s guarantee of equal protection of the law. He sought to rewrite the established framework of the 1986 Thornburg v. Gingles case for testing when a state had diluted Black voting power in redistricting.

The state’s approach would have wholly undercut the history and purpose of the landmark Voting Rights Act, passed at the height of the Civil Rights movement to try to end race discrimination.

Alabama’s extreme position may have made Roberts’ vote easier. He had previously expressed misgivings about the scope of Section 2, and he had led the court in 2013 to eviscerate another section, which had required states with a history of discrimination to obtain Justice Department approval for any election law change, in the case of Shelby County v. Holder.

Roberts believed Alabama’s arguments would compromise years of precedent. “The heart of these cases,” he eventually wrote, “is not about the law as it exists. It is about Alabama’s attempt to remake our Section 2 jurisprudence anew.”

Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined Roberts against Alabama.

Roberts persuades Kavanaugh to join him

On the right side of the bench, multiple fissures were developing.

Senior conservative Thomas, who has been unyielding in his rejection of race-based practices, was ready to write a far-reaching opinion against the court’s Voting Rights Act precedent for redistricting. Alito was siding with Alabama, too, but on narrower grounds. (In the end, Gorsuch joined all of Thomas’ dissenting opinion; Barrett and Alito joined only parts of it; Alito wrote a separate dissent, which only Gorsuch joined.)

Meanwhile, Kavanaugh and Roberts came together, ensuring the chief a five-justice majority for the robust endorsement of Voting Rights Act remedies when states discriminate in redistricting.

The relationship between Roberts, 68, and Kavanaugh, 58, dates back more than three decades, when they worked in the George H.W. Bush administration. They have remained close, and their voting patterns are tightly aligned.

They conspicuously separated in 2022 when Kavanaugh voted to strike down Roe v. Wade and nearly a half century of federal abortion rights. Roberts wanted to uphold a ban on abortion at 15 weeks of pregnancy but avoid discarding all constitutional abortion rights, in the Mississippi case of Dobbs v. Jackson Women’s Health Organization.

The Alabama redistricting case shook out differently as Kavanaugh signed a significant portion of Roberts’ opinion.

But Kavanaugh also connected the Alabama controversy to another major race-focused case last session, in at least one overt respect.

That second dispute, over affirmative-action practices at Harvard and the University of North Carolina, produced a decision against race-conscious policy. The majority, including Kavanaugh and Roberts, struck down admissions screening that considered students’ race to build campus diversity. That decision in Students for Fair Admissions v. Harvard reversed precedent dating to 1978.

In concurring statements in both cases, Kavanaugh emphasized time limits on policies tied to people’s race. To him, the deadline for university affirmative action had run out.

And for remedial practices under the Voting Rights Act, Kavanaugh warned, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But he added, “Alabama did not raise that temporal argument” and he would forgo it in this case, too.

(Kavanaugh declined a CNN request for an interview for this story.)

Kavanaugh’s Alabama concurrence adhered to the 1986 Gingles precedent, which the state was fighting with its stance of racial neutrality in redistricting. He said the precedent requires the consideration of voters’ race “to prevent the cracking or packing—whether intentional or not—of large and geographically compact minority populations.”

Still, Kavanaugh refused to join a section of Roberts’ opinion that elaborated on racial factors.

“When it comes to considering race in the context of districting,” Roberts had written, citing past cases and joined only by the three liberal justices, “we have made clear that there is a difference ‘between being aware of racial considerations and being motivated by them.’ The former is permissible; the latter is usually not. That is because ‘[r]edistricting legislatures will … almost always be aware of racial demographics,’ but such ‘race consciousness does not lead inevitably to impermissible race discrimination.’ Section 2 itself ‘demands consideration of race.’ The question whether additional majority-minority districts can be drawn, after all, involves a ‘quintessentially race-conscious calculus.’”

As Kavanaugh declined to put down a marker on such racial dimensions, he closed his concurring statement with the warning against race-based redistricting extending “indefinitely into the future.”

Alabama’s top state lawyers latched onto Kavanaugh’s position in July as they urged the legislature to stick with only one majority-Black district, despite the high court’s decision, and they invoked his opinion as they defended the revised map before the three-judge panel.

Alabama’s current map includes a newly crafted district with a 40% Black population – less than what would guarantee Blacks an opportunity to elect a candidate of their choice. In their July action on the new map, the legislature also lowered the Black population in the longstanding Black-majority district, from about 55% to 51%.

Attorney General Marshall had suggested in a July 13 letter to the redistricting committee that the Supreme Court would find that a map with two majority-Black districts unlawfully used race. He justified his position in part on Kavanaugh’s concurring statement and the position of the four dissenting conservatives.

During August arguments before the three-judge panel as it reviewed the new map, LaCour cited Kavanaugh’s position, including his assertion that “race-based redistricting cannot extend indefinitely into the future.”

On Tuesday that panel addressed some of the state’s arguments regarding Kavanaugh, as it rebuked the officials for defying prior rulings.

“(W)e discern nothing in either of those writings (by Roberts and Kavanaugh) that adjusts our understanding of what Section Two requires,” and “we do not understand either of those writings as undermining any aspect of the Supreme Court’s affirmance” of the panel’s original decision invalidating the single Black district map, they wrote.

The judges laid bare their anger: “We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.”

As this controversy reaches the Supreme Court, there may be a similar resolve among the justices, including Kavanaugh: That the difficult decision on the merits of Alabama’s case – once made – will not change.

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