The Supreme Court Just Signaled Something Deeply Disturbing About the Next Term

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3 hours ago

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Reading the tea leaves from cryptic Supreme Court orders can be perilous business because the justices are not bound by the questions they ask at oral argument, the offhand comments they make at a judicial conference, or even their monumental 'shadow docket' rulings on emergency petitions that have become all too common. But a technical briefing order in a long pending case out of Louisiana, posted on the Supreme Court's website after 5 p.m. on a Friday in August, was ominous. The order was likely intended to obscure that the court is ready to consider striking down the last remaining pillar of the Voting Rights Act, known as Section 2. Such a monumental ruling, likely not coming until June 2026, would change the nature of congressional, state, and local elections, all across the country, and likely stir major civil rights protests as the midterm election season heats up.
Louisiana v. Callais, the case that was the subject of last Friday's cryptic order, is a voting case over the drawing of Louisiana's six congressional districts. Louisiana has about a one-third Black population, but after the 2020 census the state legislature drew a districting plan, passed over a Democratic governor's veto, that created only one district in which black voters would be likely to elect their candidate of choice. Before Callais, Black voters had successfully sued Louisiana in a case called Robinson v. Ardoin, arguing that Section 2 of the Voting Rights Act required drawing a second congressional district giving black voters that opportunity. Section 2 says minority voters should have the same opportunity as other voters to elect their candidates of choice, and courts have long used it to require new districts when there is a large and cohesive minority population concentrated in a given area, when white and minority voters choose different candidates, and when the minority has difficulty electing its preferred representatives.
After Robinson and more litigation, the Louisiana legislature drew up a new plan which created the second congressional district. The state drew the second district to otherwise favor Republicans in the state overall, including House Speaker Mike Johnson. A new group of voters then sued in the Callais case, arguing that Louisiana's drawing of the second district violated the U.S. Constitution's Equal Protection Clause by being a racial gerrymander. Since the 1993 case of Shaw v. Reno, the Supreme Court has found racial gerrymanders when race is the predominant factor in drawing district lines, and the state has no compelling interest in drawing such lines.
When the Supreme Court first held oral argument in the Callais case in March, it appeared to be another in a long series of cases (many out of Louisiana) in which the court considered whether race or partisanship predominated in the drawing of district lines. I've long written that this is an impossible exercise in places like Louisiana where the factors overlap —most white voters in Louisiana are Republicans and Black voters are Democrats, so when the state discriminates against Democrats it is also discriminating against Black voters. It appeared from the initial March oral argument that the court was going to once again determine whether race or party predominated.
But instead of deciding the case at the end of June when the court ordinarily disposes of the cases heard during the term, the court set the case up for re-argument. That's rare but not unheard of. Back in 2010, the Supreme Court set the Citizens United case up for re-argument the following September. But when the court issued its June order in Citizens United for re-argument, the same order told the parties that the court wanted something new to be briefed and argued on re-argument: whether to overrule a line of cases allowing limits on corporate spending in elections. The court the following January then overruled these cases in one of the most consequential election law cases of our time that has had significant reverberations for our politics ever since.
Fifteen years later, something similar seems to be happening with Section 2 of the Voting Rights Act. In June of this year, rather than deciding the case it heard in March, the court issued an order in Callais setting the case for re-argument and stating that 'in due course, the Court will issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing.' Justice Clarence Thomas impatiently dissented from the order, saying now was the time to recognize that Section 2 of the Voting Rights Act and the court's racial gerrymandering case are on a collision course and to kill off Section 2 or rewrite it to be toothless.
We waited weeks for the court to issue its rescheduling order and when it came this past Friday it was a doozy. The court pointed specifically to a set of pages in plaintiffs' brief which argue that Section 2 is unconstitutional, at least as applied in this case, and that the Voting Rights Act cannot serve as a compelling interest to defeat a racial gerrymandering claim when race predominates. 'The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State's intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.'
Although the court's order did not explicitly mention Section 2 or even the Voting Rights Act more generally—unquestionably to obscure things further—there is no doubting what's going on here. The court is asking the parties to consider whether Louisiana's compliance with Section 2 of the Voting Rights Act by drawing a second majority-minority district—as the earlier Ardoin case seemed to require—was unconstitutional under a view of the Constitution as requiring colorblindness.
If the Supreme Court moves forward with this interpretation it would be a sea change to voting rights law. A reading of the Constitution as forbidding race-conscious districting as mandated by Congress to deal with centuries of race discrimination in voting is at odds with the text of the Constitution, with the powers granted directly to Congress to enforce the Fourteenth and Fifteenth Amendments, and with numerous precedents of the Supreme Court itself. It would end what has been the most successful way that Black and other minority voters have gotten fair representation in Congress, state legislatures and in local bodies. It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 could not be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts because if the facts in Louisiana don't justify drawing a second district, most other Section 2 claims would fail too.
A ruling killing or crippling Section 2 would be in line with what we have come to expect from the Roberts Court. Back in 2013, the court struck down as unconstitutional the other main pillar of the Voting Rights Act, the one requiring that jurisdictions with a history of race discrimination in voting get federal approval before making changes in voting laws that could decrease minority voting power. When the court did that in Shelby County, holding that the formula for deciding which jurisdictions had to get preclearance was outdated, Chief Justice John Roberts left open the possibility that Congress could write a new formula, knowing full well that it wouldn't be able to write one that would satisfy both a majority in Congress and the Supreme Court. He further assured us that 'Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.'
And now, that second pillar could well fall too.
Court conservatives likely thought teeing up the issue of overruling Section 2 on a hot summer weekend would avoid public notice. But that's a short term strategy. Come next June, any decision to strike down what's left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. A court fundamentally hostile to the rights of voters places the court increasingly at odds with democracy itself.
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