The Supreme Court appears determined to blow up its one good Voting Rights Act decision

The Supreme Court sent a rather unfortunate message during Monday’s argument in a racial gerrymandering dispute called Louisiana v. Callais: Do not trust us. To understand where that message is coming from, it’s helpful to be familiar with a case the Court decided just two years ago that is nearly identical to Callais. In Allen v. Milligan (2023), the Court ruled that Alabama’s congressional maps violated the Voting Rights Act’s protections against racial gerrymandering, and that the state must draw an additional district with a Black majority to ensure Black citizens’ political power in the state wasn’t illegally diluted. Now the Callais case places Louisiana in the same shoes Alabama wore in Milligan. Louisiana’s own lawyers concede that Callais “presents the same question” as Millligan. If the Supreme Court were the sort of institution that applies its own precedents in a consistent and predictable way, the outcome in Callais would be obvious. Since the Court recently decided a virtually identical case ordering the state of Alabama to draw a second Black-majority district, Louisiana should also be required to draw a second such district. Indeed, Louisiana appears to agree. After a legal battle, it eventually had its legislature draw new maps with two Black-majority districts. Nevertheless, at Monday’s argument in Callais, all six of the Court’s Republicans suggested the Court does not care about its recent precedent: They all appeared to be looking for a way to strike down these new maps. Four of those justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — dissented in Milligan, so their questions aren’t really surprising. But Chief Justice John Roberts and Justice Brett Kavanaugh, both of whom joined the Milligan majority, also seemed highly skeptical of Louisiana’s new maps. Monday’s argument did create some uncertainty about whether Kavanaugh will block Louisiana’s new maps in this case — or whether he will wait until a different pending case reaches the Court before attempting a ruling that would blow up nearly four decades worth of voting rights law. Kavanaugh has made it clear he’s not entirely sure that much of the Voting Rights Act is still necessary. In the Milligan case, Kavanaugh wrote a separate concurring opinion arguing that the Voting Rights Act’s protections against racial gerrymandering must have a sunset date, and he repeatedly asked questions about whether he should impose such a date in Callais. He did, however, suggest at one point that this question may need to wait until a later date — an outcome that could leave some of the Voting Rights Act’s anti-gerrymandering safeguards in place, for now. So there is some uncertainty about whether, in the short term, the Court will strike down Louisiana’s new maps. However, all six of the Court’s Republicans appear eager to abandon a voting rights decision they handed down less than two years ago — and in the long run, that makes the durability of any decision the Court makes questionable. How did this messy dispute wind up before the justices in the first place? Callais is actually one of two cases involving Louisiana’s congressional maps. Before the Callais case was even filed, a federal district judge ruled in another case, known as Robinson v. Ardoin, that Louisiana’s original maps (which had only one Black-majority district) violated the Voting Rights Act as it was interpreted in the Supreme Court’s seminal decision in Thornburg v. Gingles (1986). There have been many twists and turns in the Robinson case since then. Indeed, the Supreme Court briefly put the Robinson litigation on ice while it considered the virtually identical dispute in Milligan. Ultimately, however, Milligan rejected Alabama’s arguments that the Court should effectively overrule Gingles and replace it with a new rule that would make racial gerrymandering suits under the Voting Rights Act virtually impossible to win. Then, after the Court decided Milligan, a federal appeals court agreed that the original maps at issue in Robinson are illegal. At that point, the state decided to give up the fight, convene its legislature, and draw new maps that complied with the Robinson order. Ordinarily, that would be the end of the dispute. The state had its chance to defend its old maps. It lost in multiple courts. And it made the entirely rational decision not to litigate the case any further because the Supreme Court had already signaled that it should lose in Milligan. But then a new set of plaintiffs challenged the state’s new maps (this is the Callais case) arguing that the state violated the Constitution because it paid too much attention to race when it drew the new maps. The state absolutely did consider race when it drew those maps — it had to draw two Black-majority districts based on the Robinson court order — but the Supreme Court held in Cooper v. Harris (2017) that a state may engage in “race-based districting” when it has “a strong basis in evidence” for concluding it must do so to comply with the Voting Rights Act. There’s no question that Louisiana had a strong basis to conclude that it had to draw a second Black-majority district when it drew its new maps, as two federal courts had ordered them to do so. But two members of the three-judge panel that heard Callais, the ones appointed by Donald Trump, nevertheless struck down Louisiana’s new maps. That left the state trapped between two competing court orders, one that forbids them from using the old maps, and another forbidding them from using the new maps. Now that Callais is before the Supreme Court, the only question that is legitimately before the justices is whether a state may comply with a court order requiring it to draw two Black-majority districts by drawing two Black-majority districts. Because the state decided not to continue fighting the lower courts’ conclusions in Robinson, the justices should not have the authority to question what happened in that case. But that didn’t stop many of the Court’s Republicans from trying to relitigate Robinson. Thomas, Alito, and Gorsuch all peppered the lawyers defending Louisiana’s new maps with questions about whether, in Thomas’s words, the Court must accept Robinson “as a given.” (The correct answer to Thomas’s question is “yes.”) The Milligan dissenters already made their views clear when that case was decided, so Callais is unlikely to turn on their votes. The question is whether either Roberts or Kavanaugh have had a change of heart since Milligan was decided only two years ago. Many of their questions suggest that they have. Roberts and Kavanaugh appear eager to blow up four decades of voting rights law The Court’s decision in Milligan was one of the most surprising developments in the Court’s recent history. Although Milligan did nothing more than uphold existing law — Roberts’s majority opinion said that Milligan was about “Alabama’s attempt to remake our [Voting Rights Act] jurisprudence anew” — the Court’s Republican majority is normally very hostile to Voting Rights Act plaintiffs. Kavanaugh’s suggestion that racial civil rights laws must sunset at some point, for example, derives from Roberts’s majority opinion in Shelby County v. Holder (2013), which concluded that a key provision of the Voting Rights Act is now unconstitutional because the United States was less racist in 2013 than it was in the 1960s. Though Roberts asked few questions during the Callais argument, the handful of questions he did ask suggests that he wants to toss out Louisiana’s new maps. At one point, for example, he joined the Thomas/Alito/Gorsuch bloc in questioning whether Robinson was correctly decided. At another point, he suggested that the new maps are illegal because one of the districts resembles a “snake.” It is true that the Supreme Court has said that, during cases like Robinson, the plaintiffs must demonstrate that it is possible to draw an additional majority-minority district that is reasonably compact. But the plaintiffs met that burden while Robinson was being litigated. The state says that the legislature chose not to use the plaintiffs’ more compact maps when it drew the new districts because it wanted to protect a Republican incumbent who sits on the powerful House Appropriations Committee. Under existing law, the state is allowed to draw an uglier map than the one that was under consideration in Robinson. Indeed, the Court’s gerrymandering decisions emphasize that “redistricting is ‘primarily the duty and responsibility of the State.’” So Louisiana should have been allowed to draw any map it wants, provided that it complied with the Robinson order. Still, Roberts’s skeptical questions about the snake-like district imply that he is looking for a reason to strike the new maps down. Kavanaugh, meanwhile, repeatedly brought up his claim in Milligan that the Voting Rights Act’s anti-gerrymandering safeguards need an expiration date. He did, however, acknowledge that this issue was not raised by the Callais plaintiffs until fairly late in this litigation, and that there is another case making its way through the court system which raises this sunsetting issue more directly. So Kavanaugh may vote to uphold Louisiana’s new maps, with the understanding that he could potentially eliminate much of the Voting Rights Act once that other case reaches his Court. Even if Kavanaugh does stay his hand in Callais, however, that won’t be enough to save Louisiana’s new maps. If Roberts joins the four Milligan dissenters, that’s a majority. Ultimately, if Louisiana’s maps are struck down, one of the biggest losers will be the fairly basic proposition that the law should operate in a predictable way. Because of the Republican justices’ longstanding skepticism of the Voting Rights Act, few close observers of the Court expected it to do what it did in Milligan. But the ink on the Milligan opinion is barely dry, and lawyers and lawmakers should be able to rely on a Supreme Court decision that is less than two years old — especially given the fact that no member of the Milligan majority has left the Court. If Monday’s oral argument is any sign, however, then it may be that Americans can’t even count on this Court to follow its own very recent decisions.

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The Supreme Court appears determined to blow up its one good Voting Rights Act decision