People cite a familiar cast of villains when they talk about the decline of democracy in America.
Some point to the GOP legislators who craft voter suppression bills. Others blame those who spread the “Big Lie” that the 2020 presidential election was stolen. Some even mention the two Democratic Senators who doomed voting rights legislation this week because they would not alter the filibuster.
But there is someone most people rarely mention when talking about roadblocks to voting or the decline of democracy, says legal analyst Elie Mystal: Chief Justice John Roberts.
Mystal, one of the most sought-after legal analysts in the country and author of the forthcoming book, “Allow Me to Retort: A Black Guy’s Guide to the Constitution,” sat down with CNN for a recent Q&A on race, voting rights and the decline of democracy in the US.
Mystal says people can’t talk about these issues without talking about Roberts’ central role in removing federal oversight of elections to allow unfettered voter suppression to become normalized. Roberts’ majority opinion in the 2013 Shelby v. Holder decision was a crucial milestone in his decades-long campaign to turn back racial progress, Mystal says.
The 1965 Voting Rights Act was passed to prevent local and state governments from adopting laws that denied citizens the equal right to vote based on race. The Shelby decision gutted the law by allowing states with a history of racial discrimination to change their election practices without getting approval from the federal government.
“His [Roberts’] opinion purposefully opened the door to all manner of voting rights restrictions,” Mystal writes. “When you see lines of Black people waiting hours and hours to vote, you can largely thank John Roberts for these scenes of racism. And he hasn’t gotten nearly enough blame for it.”
A spokesperson for Roberts did not respond to a CNN request for comment on Mystal’s remarks.
Such blunt talk by Mystal is characteristic of his new book, which is a lively, pugnacious, and accessible look at the legal theories that shape everything from voting to gun rights.
Mystal says he wrote it to show Americans “what rights we have” and “what rights Republicans are trying to take away.”
Here are excerpts from our interview with Mystal. His answers have been edited for brevity and clarity.
What will be the fallout now that Democrats failed to pass a voting rights bill?
The Republican Party has no agenda. No way of appealing to Black voters and minority voters across the country. Their only strategy is to suppress the minority vote. Now that the Democrats have failed to pass voting rights legislation, what they have effectively done is rubber-stamp the Republican strategy of suppressing the minority vote.
The Republicans never leave their base out in the cold. Republicans always give their base red meat, something for them to get excited about every election. Whereas the Democrats never give their base, which happens to be Black and brown voters, anything to be pumped up and excited about during their governing years. And then two or three months right before the election, they’re like, ‘Oh yeah, by the way, you guys got to come vote and save the party.’
Black people can’t save the country if Democrats don’t let us. If you don’t put the laws in place to protect our right to vote, then the 14 or 15% of us can’t save America from its White, right-wing theocracy.
What does it mean for the country, and for democracy itself, now that the voting rights bill has been defeated?
It’s hard for me to not think of it kind of holistically, because not allowing Black people to participate in the polity is as American as apple pie. This country was founded on an apartheid system of government. They fought a war over slavery – the losing side won the peace. And while they were not able to reinstitute slavery, they were able to reinstitute segregation and oppression and an apartheid government.
The 15th Amendment, which says you can’t discriminate against people voting based on the color of their skin, meant nothing for 100 years because there was no law to back it up. Without a statute, a constitutional amendment is more like a suggestion. It has no enforcement kick. There was no statute passed to make the gains of the Fifteenth Amendment real.
That’s why I said the 1965 Voting Rights Act is the most important piece of legislation in American history. It is the first and only piece of legislation that makes the 15th Amendment real in this country. That is why Republicans have been trying take it away pretty much since its start.
So when we say what is the effect on the country now that Democrats failed to pass voting rights legislation – the country will just do what the country has always done, which is oppress the voice and political opportunity of African Americans and minorities writ large in this country. We will be going backwards.
In your new book, you say something that stood out to me: “The Constitution was designed to create a society dominated by White males.” Not all the Founding Fathers were slaveholders. What about men like John Adams and Benjamin Rush, who helped birth the Constitution? They were opposed to slavery. Isn’t what you said unfair to them?
No, because even for the founders who weren’t slaveholders, they willing to make deals with slaveholders. One of the ways that we know that the John Adamses of the world knew that slavery was wrong is that they refused to put the word “slavery” in their precious document. The word “slavery” is referred to only obliquely in the original Constitution. The first and only time the word “slavery” appears in the Constitution is in the 13th Amendment outlawing it.
What do I take from that? These White people knew that what they were doing (by accepting the existence of slavery in the original draft of the Constitution) was wrong. And they did not stop it. Instead, they made deals with the Southern slaveholders in order to have a frigging country.
But what about the pragmatic side to that decision? The only way the US could have a nation and a Constitution was to make that deal.
How is it pragmatic to say that the only way we can have something that we really want is to hold an entire people in bondage for hundreds of years.? How is that a deal? They didn’t ask my people. They didn’t ask women if they wanted to be part of the deal. I understand from the perspective of a rich White person, it was a fair deal. If you are sick of being taxed by a government from across the sea, it makes sense.
I find that argument to be intellectually and morally weak. So don’t make the deal. Don’t break bread with slavers and slaveholders for economic opportunities. I don’t think that that is how things had to happen. There were people in real time who were saying slavery is wrong and should never be allowed.
I saw a recent interview where you called Chief Justice John Roberts the “chief architect on the assault on democracy” in this country. That sounds harsh for a public figure that’s pretty popular. You may have heard about the recent Gallup Poll, where he had the highest approval rating of any federal leader.
John Roberts has been the enemy of voter equality for his entire professional career. In 1982, Congress amended the Voting Rights Act because while it was illegal to discriminate against people based on the color of their skin, in 1981 you had to prove that the state legislature intended to discriminate.
In 1982, they updated the law to mean that you didn’t have to show intent. If your voter law had a discriminatory impact, the fact that it was discriminatory was enough. [What Mystal is describing has long been a battleground in voting rights: Can a law violate the Voting Rights Act even if legislators never announce their “intent” by mentioning race?]
[President Ronald] Reagan said that the Voting Rights Act humiliated the South. Reagan brought in a guy to figure out how to oppose the 1982 Voting Rights Act amendment, and that guy is John Roberts. John Roberts got his legal start arguing against the Voting Rights Act.
John Roberts has been the enemy of black people voting for his entire career. He showed it in the 2013 [Shelby v. Holder ruling] when he eviscerated Section Five of the Voting Rights Act. That’s the preclearance provision that Reagan thought was humiliating to the South. He has been the architect of this assault on democracy.
Why is Roberts’ Shelby decision so offensive to you? In your book, you talked about Roberts’ deciding in his majority opinion that racism was over and that Section Five was no longer needed. [Author’s note: Roberts never claimed racism was over but wrote in the decision that “our country has changed” and that Congress must pass voting rights legislation that “speaks to current conditions.”]
It’s ridiculous to me that John Roberts, a White elite person, would be the guy to know when racism in the Deep South has subsided to the point where Black people do not need protections of their equal rights. He would be the last guy to know that in terms of his own experience and quite frankly in terms of how the Supreme Court is supposed to function.
The Supreme Court would be the last institution to know that. Congress is supposed to be the institution to know that. And Congress said we still need the Voting Rights Act. It was reaffirmed in 2006 by a voice vote in the House, which means it was so popular that they didn’t bother to do a roll call, and in the Senate.
Congress says that we needed the Voting Rights Act, but the Supreme Court stepped in and said, ‘actually, no, we don’t,’ because racism has been defeated in the South.
You talk in your book about how the Supreme Court in the late 19th century made a string of racist decisions that made the rise of Jim Crow possible. Do you think one day historians will look at rulings from the Roberts Court, such as the Shelby decision, and place them in the same league?
History is written by the victors, and right now his side is winning. But assuming that his side eventually loses, I think Roberts’ popularity will fade as we get further from his decisions. The negative and racially biased impact of the decisions will become more apparent. People will look at things like Shelby County and come to the determination that Roberts was an enemy of racial progress in this country.
He is a friend and a handmaiden to White supremacy. People look at his persona and they’re saying he can’t possibly be that bad. It’s because very few people have actually read his decisions and actually understand his entire history on these issues.