David A. Graham: John Roberts says partisan gerrymandering is not his problem
Together with his decision upholding the Trump administration’s travel ban and yesterday’s decision blessing partisan gerrymandering, Roberts has illustrated the path forward for those Republicans who seek to diminish the power of nonwhite voters and maintain their own power even as they earn fewer and fewer actual votes. Roberts’s red line is not state dishonesty or flagrant discrimination. Rather, he is willing to countenance both as long as the Trump administration does not produce a paper trail documenting the fact that it is lying. His four fellow conservative justices, on the other hand, are as willing to consume Trump-style ostentatious dishonesty as ravenously as any dribbling sycophant on Fox News.
In the travel-ban case, Roberts insisted that despite the president’s public statements about wanting to ban Muslims, the text of the travel ban itself “says nothing about religion.” This may seem to contradict the pithy observation he quoted in the census case that the Court is “not required to exhibit a naiveté from which ordinary citizens are free.” The distinction between the two cases, though, is found in the emails proving that Commerce Secretary Wilbur Ross wanted to add the citizenship question even before latching onto enforcing the Voting Rights Act as a rationale for the move. It is possible, even likely, that if there’s enough time to deal with the pending litigation before the census gets under way, Roberts will accept whatever explanation the Trump administration is willing to offer, as long as there is no documented proof it is lying. Bad-faith argumentation, even outright dishonesty, is acceptable—so long as you don’t get caught.
Similarly, Roberts’s decision in the political-gerrymandering case, in which he concluded that settling political-gerrymandering decisions was a question outside the Court’s authority, offers a way forward for Republicans seeking to weaken the political power of black and Latino voters in order to maintain their own dominance. Republicans can simply argue that they are drawing congressional districts to discriminate against Democrats, rather than against voters of color per se. As long as they aren’t foolish enough to document an intention to explicitly discriminate against voters of color, Roberts will be on their side.
Jonathan Rauch: The gerrymandering ruling was bad, but the alternatives were worse
Roberts’s conservative colleagues, however, don’t even need the pretext. In his partial dissent, Justice Clarence Thomas lamented the “din of suspicion and distrust that seems to typify modern discourse,” in the course of arguing that the Trump administration should have been believed despite evidence detailing its falsehoods. That Thomas’s jurisprudence shows a years-long hostility to such deference in almost every other case is not ironic; it is evidence that he is trolling, demanding an expectation of good faith while flaunting his own bad faith.