Joshua Villanueva is JURIST’s Washington, D.C. Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School.
There is a certain intensity to watching US Supreme Court arguments live that recordings simply cannot capture. The subtle shifts in the justices’ expressions and the way they lean in when a key point is made each add a new layer to understanding the stakes. This was especially true on Wednesday morning when the Court reexamined one of the most contentious questions in modern voting rights law: when, if ever, can a state intentionally use race to redraw its congressional maps without violating the Constitution? This debate centers on Louisiana’s controversial new map, drawn after a lower court ruled that the state had diluted Black voters’ power, thus violating the Voting Rights Act.
The case, Louisiana v. Callais, stems from a significant legal battle over how to balance the protection of minority voting rights with the principles of equal protection under the Constitution. At the heart of this case is whether Louisiana’s decision to create a second majority-Black district through Louisiana Senate Bill 8 SB8 is a reasonable attempt to comply with Section 2 of the Voting Rights Act or whether it constitutes an unconstitutional racial gerrymander.
The Voting Rights Act, specifically Section 2, was designed to prevent election rules that disproportionately affect minority groups. Under Section 2, courts can step in when minority voters face discrimination in the form of vote dilution, often where their voices are not fully heard in the election process. However, while Section 2 seeks to protect against this type of discrimination, the Constitution limits how states can address these concerns, particularly when race becomes a deciding factor in redistricting.
The Key Issue: Race and the Remedy
For decades, the Court has handled cases involving race and voting rights through a series of tests and standards, one of which is the Gingles framework. Under Gingles, to prove vote dilution, plaintiffs must show that the minority group is large enough and compact enough to form a district, that they vote cohesively, and that the majority consistently votes as a bloc to defeat the minority’s candidate. Louisiana, under pressure from these legal standards, enacted SB8, creating a second majority-Black district in response to accusations of vote dilution.
But here’s where the constitutional tension arises. If race is a predominant factor in drawing district lines, the state must justify its actions under the strict scrutiny standard, which requires the state to show that its race-based decision is necessary to achieve a compelling state interest, and that it is narrowly tailored to that interest. The state argues that complying with Section 2 of the Voting Rights Act is itself a compelling interest, making it constitutionally permissible to consider race in redrawing the district boundaries. But the Court has never directly ruled on whether a state can rely on compliance with the Voting Rights Act as a compelling interest for such race-conscious decision-making.
Inside the Courtroom
The Justices pressed both sides on whether a state’s efforts to comply with Section 2 could justify racial classifications, or whether such classifications should always trigger the highest level of scrutiny. For conservatives on the bench, the concern was whether Louisiana had allowed race to become the dominant factor in drawing the district lines, a concern that often signals a violation of the Equal Protection Clause.
Justice Kavanaugh frequently leaned forward and was actively engaged throughout the 2 and a half-hour oral argument, questioning whether remedies specifically drawn to address the Voting Rights Act violation should be subject to such intense scrutiny. He suggested that there might be cases in which race-based fixes are justified to remedy a proven discrimination issue. Still, he cautioned that there should be a time limit, saying “this Court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite.”
Justice Kagan, initially displaying a disinterested demeanor as she watched Justice Alito during his questioning, soon became more engaged when Solicitor General of Louisiana Benjamin Aguiñaga began to argue. Justice Jackson firmly pushed back against the notion that race should play such a dominant role. Both justices emphasized that while race-based remedies could be justified, they must be temporary and precisely tailored to address specific harms. Justice Jackson, in particular, compared the law to a “tape measure,” stressing that the aim is not to establish permanent race-based solutions but to address specific issues in a measured, time-limited manner. Her tone was firm and assertive as she sought to redirect the discussion toward a more practical and constrained application of racial considerations, in line with the principles established in Shaw v. Reno and Miller v. Johnson.
The Court also explored whether race-conscious maps could be drawn in such a way that respects neutral districting criteria, such as maintaining incumbent seats and preserving the political balance of the state. This question goes to the heart of whether the line between race and partisanship can be meaningfully drawn, whether race is truly the determining factor or simply a byproduct of partisan politics. Justice Barrett, looking intently at counsel at times, expressed skepticism about whether race could be easily separated from political considerations in this context, hinting that such efforts might be challenging. She also raised the question of congruence and proportionality in the context of race-based redistricting asking, “What if this is an exercise of Congress’s enforcement power? If we’re looking at the City of Boerne test and we’re saying it has to be congruent and proportional, would that affect the question of whether it can go on indefinitely or not, that at some point it becomes not congruent and proportional?”
Justice Gorsuch’s questions centered on the practical challenges of determining “predominance” in race-based districting. He raised concerns about how states define and prioritize their political objectives, such as protecting incumbents and ensuring party representation. He also questioned the difficulty of separating race from partisanship in redistricting, probing how courts evaluate political objectives and when race becomes the predominant factor. Additionally, he highlighted the challenge of balancing race and traditional districting principles without misapplication.
Justice Thomas, throughout the argument, showed a more detached demeanor, often sitting with his arms crossed and quietly observing. His body language suggested a more passive, yet discerning, approach, particularly when the issue of intentional discrimination was raised. He seemed less engaged in discussions of race-based remedies and asked fewer questions than the other justices.
Justice Sotomayor was assertive and engaged, emphasizing the ongoing racial inequities in voting and defending the necessity of race-based remedies. She challenged Louisiana’s counsel by questioning whether race-conscious districting could be avoided when racial discrimination in voting was clearly present, noting that the six plaintiffs in the case were not being denied voting opportunities, but rather, Black voters were being effectively disenfranchised. Her tone was firm as she defended the use of race to remedy vote dilution, especially when racial segregation and polarized voting still existed.
Justice Alito, very much like Justice Thomas, displayed skepticism toward race-based redistricting. He raised concerns about the difficulty of separating race from partisan interests in districting, questioning whether race was being used as a proxy for partisan advantage. Alito sought to draw distinctions between the compactness of a minority group and the district itself, probing whether the maps truly met traditional districting criteria. His body language appeared detached, frequently leaning back in his chair, gazing upward at the ceiling, and occasionally muttering to himself.
The Court also discussed the potential implications of Students for Fair Admissions v. Harvard (SFFA), which examined the use of race in admissions processes. Ms. Janai Nelson, arguing for the appellants, quickly pointed out that SFFA addressed a different context and confirmed that race may be used to remedy specified discrimination, distinguishing SFFA’s higher-education diversity rationale from Section 2’s remedial purpose grounded in Congress’s Reconstruction-Amendments enforcement power.
Chief Justice Roberts played a moderating role during the argument, asking insightful and clarifying questions to both sides. He focused on the practical application of Section 2 and whether the use of race in redistricting could be justified based on the specific circumstances of the case. Roberts inquired about the implications of prior cases, particularly referencing Allen v. Milligan and its relevance here.
The Dilemma: Balancing Race and Traditional Principles in Redistricting
The Court’s upcoming decision will center on Section 2 of the Voting Rights Act, focusing on how race-based districting should be interpreted and applied in the redistricting process. At issue is how to strike a balance between race-conscious districting and traditional districting principles like compactness, political considerations, and incumbency protection.
The appellants, along with the Solicitor General, emphasize the need for a race-neutral approach to redistricting, arguing that excessive reliance on race in districting risks racial stereotyping and violates constitutional principles. Justices Gorsuch, Kavanaugh, and Barrett have expressed concerns about the intersection of race and partisanship, questioning how courts can effectively distinguish between political and racial motivations in redistricting. They suggest that the Court may refine the existing tests for racial predominance, which could make it more difficult for plaintiffs to prove violations under Section 2 if they cannot demonstrate that race predominated over traditional districting principles.
In contrast, Justices Sotomayor and Jackson defend the continued necessity of Section 2 as a tool to address racial vote dilution, arguing that it plays a crucial role in ensuring equal voting opportunities for historically marginalized groups. They support the Gingles framework, which allows courts to intervene in cases of vote dilution, even without proof of discriminatory intent. This position upholds the results-based approach that focuses on remedying the disparities in voting opportunities for minority communities.
The Court is likely to clarify its application of the “predominance” test, aiming to ensure that race is not used as a predominant factor in districting unless a clear violation of Section 2 is proven. This decision will likely have broad implications for how states approach redistricting, making it more difficult to use race-based criteria unless a significant violation is demonstrated. The Court’s interpretation will either limit or expand the ability of plaintiffs to challenge redistricting plans on the grounds of racial vote dilution.
Looking Ahead
The Court’s forthcoming ruling will likely set key precedents for race-conscious redistricting. A decision that imposes stricter limitations on race-based districting could significantly affect how states, particularly in the South, draw congressional maps, where Section 2 violations have historically been common.
If the Court sides with Louisiana, states may gain more latitude in using race-conscious remedies, though they would likely face heightened scrutiny to prevent partisan manipulation or overly broad racial classifications. Conversely, a ruling that restricts race-based remedies could lead to challenges of existing districts and potentially disrupt redistricting efforts in states that have already complied with the Voting Rights Act.
Ultimately, the Court’s decision will not only impact Louisiana’s map but could reshape national approaches to race, voting rights, and political representation. This case is poised to influence the future balance of power in American politics, setting the stage for how race is handled in redistricting across the nation.
