The fact that the Court is prepared to review what the left regards as a foundational element of anti-discrimination law may come as a shock to some. It shouldn’t.
T he Supreme Court dropped a tantalizing tease last Friday when it indicated that it would take up the constitutionality of majority-minority congressional districts mandated by the Voting Rights Act.
Court-watchers, including our own Dan McLaughlin, read what Politico called a “terse” announcement suggesting the body would review whether racial gerrymandering “violates the Fourteenth and Fifteenth Amendments to the U.S. Constitution” to mean that the Court would “take up the big constitutional game” raised in Louisiana v. Callais. Thus, the Court is likely to apply a critical eye to Section 2 of the VRA next year after punting on the issue in a separate case this summer.
The Louisiana case surrounds one of the state’s two minority districts, which was drawn after the state’s single African-American-dominated district was deemed not in compliance with the VRA. The second district, however, sprawled across the state — itself stretching the bounds of the requirement that congressional districts be both compact and contiguous. As the Wall Street Journal editorial board observed, “States are now caught in a vice.” It continues: “If they weigh race too heavily, they can run afoul of the Equal Protection Clause. But if they ignore race, they can be sued for violating Section 2.” This is unsustainable.
Predictably, those who advocate the perpetuation of a status quo established in 1965 are horrified. UCLA’s Rick Hasen called the Supreme Court’s decision to take up Callais in earnest “a big, and dangerous, step toward knocking down” one of the last of the VRA’s pillars. Doubtlessly, those who share his outlook will scandalize themselves over the prospect that the Supreme Court will rule in ways that allow for political outcomes that progressives believe the federal government should prevent.
The very fact that the Court is prepared to review what the left regards as a foundational element of American anti-discrimination law may come as a shock to some, but it shouldn’t. The Court’s conservatives have spent decades warning that the VRA was in desperate need of congressional fine-tuning, but Congress failed to heed these admonitions.
In 1993, Justice Sandra Day O’Connor wrote that racial gerrymandering threatens to “carry us further from the goal of a political system in which race no longer matters,” adding that it “may balkanize us into competing factions.” “As a practical political matter,” Justice Clarance Thomas wrote the following year, “our drive to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions.”
Ahead of a 2009 decision on a case that challenged the VRA’s preclearance provisions and the formula through which “bailouts” are dispensed to districts that prove they’re not engaged in discrimination, Chief Justice John Roberts signaled his frustrations with the law. “So, your answer is that Congress can impose this disparate treatment forever because of the history in the South?” he pressed Barack Obama’s solicitor general, Neal Katyal. “Absolutely not,” Katyal replied. The justice didn’t buy it. “I mean, at some point it begins to look like the idea is that this is going to go on forever,” he observed.
When the Supreme Court struck down the VRA’s selectively enforced preclearance provisions in the VRA’s Sections 4 and 5 in 2013, Roberts needled Congress for its inaction. “Our country has changed,” the chief justice wrote, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Indeed, “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” Roberts scoffed. “It instead re-enacted a formula based on 40-year-old facts having no logical relationship to the present day.”
This spring, as the Court considered oral arguments in Callais, Justice Brett Kavanaugh echoed his colleagues’ conclusions. “On equal protection law, the Court’s long said that race-based remedial action must have a logical end point, must be limited in time, must be a temporary matter,” he observed. In Kavanaugh’s concurring opinion in Students for Fair Admissions, the case that found race-based affirmative action programs in college admissions violate the Equal Protection Clause, the justice observed that he is just the latest jurist to question the seeming eternality of mid-20th-century anti-discrimination statute.
“He trotted out Justice Harry Blackmun’s hope in 1978 that affirmative action would be a ‘relic of the past’ by 1988, and Justice Sandra Day O’Connor’s expectation in 2003 that affirmative action would ‘no longer be necessary’ in 25 years,” the author and Court-watcher Madiba Dennie noted. “Since ‘a generation has . . . passed’ since then, Kavanaugh concluded, the outcome in Students For Fair Admissions ‘appropriately respects and abides by [the 2003 decision in Grutter v. Bollinger] explicit temporal limit on the use of race-based affirmative action in higher education.’”
No one can say they weren’t warned.
Among those who favor judicial outcomes to prevent turns of events to which they (and, it should be said, almost anyone) would object, scuttling majority-minority district requirements is anathema. They’re free to reject the counterclaim — that “partisan gerrymanders reduce electoral competition and make politics more polarized,” as the Journal put it. But the VRA’s proponents, especially congressional Democrats, rejected the conservative justice’s logic in whole, including their oft-stated claim that racial dynamics in America have not been static since 1965, and legislative action was necessary to remedy the growing discrepancies between the nation as it is and the one that existed 60 years ago. As such, that element of the right’s argument against the VRA went unaddressed. In the absence of a convincing rebuttal, it has been prevailing for the better part of a decade.