The cases cited by Roberts make it clear that their concern for “equal sovereignty” is reserved solely for the admissions process. Roberts himself apparently ignored these warnings. At some point in Shelby County, for example, he cited the 1911 Oklahoma case to emphasize that the United States “was and still is a union of States equal in power, dignity and authority.” He left out the rest of what Justice Horace Lurton wrote immediately afterwards, which clearly showed its limited scope: “To assert otherwise would be to say that the Union, through the power of Congress to admit new States, could become a union. of states unequal in power, comprising states whose powers were limited only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.

In his dissent in Shelby County, Justice Ruth Bader Ginsburg warned of the majority’s misapplication of the equal sovereignty doctrine. “The unprecedented extension of the principle of equal sovereignty outside its proper domain – the admission of new states – is likely to cause many misdeeds,” she wrote. “Federal laws that treat states disparately are hardly a new thing. Do such provisions remain safe given the Court’s expansion of the equal influence of sovereignty? She cited several cases in which states are treated differently from each other by federal laws, often without controversy.

The invocation of this doctrine in Voting Rights Act cases has also drawn strong criticism from legal scholars. Leah Litman, professor of law at the University of Michigan, wrote in a 2016 law review article that the “principle of equality of States” set out in Shelby County had “little basis in the constitutional text or in drafting history, nor do these sources specify the contours of the principle of state equality.” She also noted that “the idea that federal laws cannot constitutionally specifically identify particular States or result in differential effects on different States is potentially in conflict with other principles embodied in the structure of the Constitution, in the long-standing practice of Congress and judicial precedent.”