AFTER THURGOOD MARSHALL retired from the Supreme Court in 1991, his colleague Sandra Day O’Connor wrote a tribute to the civil-rights hero. The first black justice brought not only “legal acumen” but “life experiences” and a “special perspective” to oral arguments and the justices’ private conferences. Marshall “saw the deepest wounds in the social fabric and used law to help heal them”, O’Connor wrote, and “profoundly” influenced her jurisprudence.

Three decades on, it appears that a remarkable series of questions from the court’s third black justice, Ketanji Brown Jackson, may have played a key role in its surprise decision on June 8th in Allen v Milligan, a challenge to Alabama’s electoral map under the Voting Rights Act (VRA) of 1965. Section 2 of the landmark civil-rights law prohibits states from drawing district boundaries that cause the “denial or abridgment” of citizens’ opportunity to vote “on account of race”. Racial minorities must have an equal chance to “participate in the political process” and to “elect representatives of their choice”.

Milligan arose after Alabama adopted an electoral map in 2021 that included just one of seven districts where black voters forge a majority. The new map in effect gave African-Americans—who comprise 27% of the state’s voting-age population and vote overwhelmingly for Democrats—a chance of electing a candidate of their choice for only 14% of Alabama’s congressional seats. A three-judge district court (including two jurists appointed by Donald Trump) concluded in January 2022 that the map was probably illegal under the VRA and ordered Alabama’s legislature to draw a new map including a second district where blacks constituted a majority. The question was not, they wrote in the 225-page opinion, a “close one”.

But the following month, the Supreme Court handed down a 5-4 order honouring Alabama’s request to temporarily block the lower court’s ruling. This allowed Alabama to proceed as planned with its map for the 2022 elections. It also left in place similarly challenged maps in Georgia, Louisiana and Texas, giving Republicans an edge that helped them capture the House of Representatives. Justice Brett Kavanaugh emphasised last year that the interim decision was not a ruling “on the merits” and that it merely preserved the status quo while the court took its time to consider the question “in an orderly fashion” after full briefing and oral argument.

It seems a more complete examination of the case led Justice Kavanaugh to a resolution quite different from what nearly all observers were expecting. On June 8th he, along with Chief Justice John Roberts, joined the court’s three liberal justices (Jackson, Elena Kagan and Sonia Sotomayor) in sticking with the lower court’s initial finding: that Alabama’s map violated the law. That decision “faithfully applied our precedents”, the majority observed, and Alabama’s defence of its skewed map could be justified only by asking the Supreme Court to “remake Section 2 jurisprudence anew”. In the immediate wake of the decision, the Cook Political Report, a non-partisan newsletter, updated its assessment of five House seats, giving Democrats brighter hopes in 2024.

The majority opinion by Chief Justice Roberts casts the former staffer in Ronald Reagan’s Department of Justice in a new light. In the 1980s he was an energetic opponent of changes that permitted VRA challenges to the effects of (rather than just the intentions behind) state policies. He authored the 2013 decision gutting Sections 4 and 5 of the VRA: Shelby County v Holder, a ruling that spurred many previously restrained states to enact discriminatory voting policies after no longer having to get election changes approved by the Department of Justice. And he signed on to a further weakening of the VRA in 2021.

But in Milligan, Chief Justice Roberts found something in the VRA worth saving. His opinion quotes a Senate report lauding the law as “the most successful civil-rights statute in the history of the nation” and criticises Alabama’s “race-neutral benchmark” for redistricting to be “compelling neither in theory nor in practice”. He stands by the “racial consciousness” dictated by Section 2 that is necessary to redraw district lines to protect minority communities.

Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch and Clarence Thomas dissented. Justice Thomas characterised the precedents the majority upheld as “deplorable” and rejected the majority’s view of Section 2 as inconsistent with the constitution.

What accounts for two conservative justices coming to the rescue of voting rights (if belatedly, in Justice Kavanaugh’s case)? Masterful presentations in the oral argument last October by Deuel Ross, Abha Khanna and the solicitor-general, Elizabeth Prelogar, could not have hurt the cause. Chief Justice Roberts and Justice Kavanaugh may also be tempering their most conservative instincts to give the imbalanced (and increasingly unpopular) Supreme Court less of a rightward tilt. But Justice Jackson’s startling defence in the oral argument of what she characterised as the inescapable colour-consciousness of the Reconstruction Amendments—and the remedies they authorise in laws like the VRA—may have influenced her colleagues, too. The original meaning of the 14th and 15th Amendments, she said, sought to “ensure that people who had been discriminated against…were actually brought equal to everyone else in the society”. That idea, she added, is neither “race-neutral [n]or race-blind”. ■