The Supreme Court Is Poised to Rule That It’s Racist to Remedy Racism

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Is it racist to remedy racism? That’s the question at the heart of Callais v. Louisiana, which the Supreme Court heard on Wednesday. The case asks whether the Voting Rights Act gives Black Louisianans too much political power—and if so, whether the landmark law violates the Constitution. Unsurprisingly, the Republican-appointed justices seem eager to rule that it does. Throughout oral arguments, they suggested the VRA protects minority voters too effectively, dragging the government into race-conscious considerations that offend the equal protection rights of the white voters who sued in this case. And they floated various ways to gut what remains of the statute by twisting it beyond recognition or striking it down altogether. The result would be a windfall for Republicans, who stand to gain at least 19 seats^[2] in the House of Representatives if the Supreme Court frees them to gerrymander Black communities into oblivion. Such a decision would also devastate minority representation in Congress, eliminating up to 30 percent^[3] of the Congressional Black Caucus.

In short, the consequences of Callais are staggering. But perhaps the deepest outrage is what this case would do to the Constitution itself: warping its guarantees of equality into weapons against the very people they were meant to protect. The 14^th and 15^th Amendments were ratified to establish^[4] an enduring multiracial democracy, explicitly empowering Congress^[5] to end the subjugation of nonwhite Americans. Through the Voting Rights Act, Congress used that authority to secure minorities’ equal voice in the political process. Yet now, once again, the Supreme Court looks ready to gut the law. In this opposite-day jurisprudence, the government is racist when it combats racism, and the nation’s most important civil rights law is a tool of racial entitlement that has outlived its purpose.

Callais’ history began when the Louisiana Legislature drew a new congressional map in 2021. Republican lawmakers packed many Black voters into a single district, then distributed the rest across five majority-white districts. This outcome gave Black Louisianans, who make up roughly one-third of the state’s population, a meaningful opportunity to elect their preferred candidate in just one district, while white voters dominated the other five. Such racial targeting is a quintessential violation of the Voting Rights Act’s Section 2, which requires that minorities have a fair shot to “elect representatives of their choice.” So a federal court struck down^[6] the map in 2022. The Legislature then drew a new one that created a second majority-Black district. A group of white voters^[7] then challenged the new district as a violation of the equal protection clause. A different federal court agreed, ruling^[8] that the map unconstitutionally discriminated on the basis of race.

Louisiana appealed to the Supreme Court, which heard arguments^[9] last term. But the Republican-appointed justices sounded frustrated by the narrow scope of the case. The court then, in a highly unusual move, scheduled Callais^[10] for reargument this term—and broadened^[11] the question presented, asking whether the use of race to create an additional “majority-minority” district violates the 14^th and 15^th Amendments. As voting rights scholar Richard Hasen wrote in Slate^[12], this framing allowed the court to take direct aim at Section 2 of the Voting Rights Act by holding that it unlawfully requires the consideration of race in redistricting. Sensing an opportunity to kneecap the VRA, Louisiana flipped positions, declaring that its own map is unconstitutional because all “race-based redistricting” violates equal protection.

If there was any hope for the VRA, it would have come from Chief Justice John Roberts and Justice Brett Kavanaugh, who joined a surprise 5–4 decision^[13] sparing the law two years ago. But Kavanaugh swiftly quashed any optimism that he might repeat this fleeting act of courage. As currently interpreted, he declared, the VRA “entails the intentional, deliberate use of race to sort people into different districts.” And, citing a series of cases that led to the recent demise of affirmative action, he repeated his belief that such “discrimination” must have an expiration date—“a time limit” after which it is no longer constitutional. NAACP Legal Defense Fund President and Director-Counsel Janai Nelson, who defended the VRA, pushed back on this claim, noting (correctly) that the Supreme Court has never actually embraced it. Kavanaugh was not dissuaded, insisting that “race-based remedies are permissible for a period of time” but “should not be indefinite and should have an end point.” His obvious implication: Section 2’s “end point” has arrived, and the court must prohibit any further consideration of race to protect minority voters.

The fundamental flaw in this logic, as all three liberal justices pointed out repeatedly, is the false equivalency between racism (oppressing people of color) and remedying racism (ending such oppression through race-conscious solutions). Since 1986’s Thornburg v. Gingles^[15], the Supreme Court has interpreted Section 2 as an exercise of the latter—redressing racism rather than perpetuating it, in harmony with the Constitution. But today’s Republican-appointed justices see no difference between these two things: They believe that consideration of race is always malignant and legally suspect, even if it’s done to safeguard minorities’ rights.

Justice Neil Gorsuch mounted that argument during an exasperating exchange with Nelson, asserting—five times in a row—that the deliberate creation of a majority-Black district “intentionally discriminates on the basis of race.” Nelson refused to accept the premise, insisting on the distinction between actual discrimination (by diluting minorities’ votes) and remedying discrimination (by increasing minorities’ political power). She reminded the court that this distinction comes straight from Congress, which amended the VRA in 1982 to preserve and expand minority representation. But Kavanaugh shot Nelson down: “When we’re applying the equal protection clause,” he told her, “deferring to Congress is, I think, not what we’re supposed to do.”

Justice Amy Coney Barrett shared Kavanaugh’s Congress-skeptical attitude in a line of questions that reflect profound hostility toward the 15^th Amendment. Barrett pointed out that the Supreme Court interprets that amendments to outlaw only intentional discrimination. But Section 2 of the VRA also forbids maps that have discriminatory effect, regardless of intent. So, Barrett, wondered, if Section 2 goes “above and beyond what the 15^th Amendment requires of its own force,” is Congress allowed to choose “the VRA as a remedy”? Or is the law an improper exercise of congressional authority, because it is not “congruent and proportional” to the amendment it’s enforcing?

The problem with Barrett’s reasoning is that the Supreme Court has never required federal voting laws to closely mirror the 15^th Amendment. Nor should it, since the framers of the 15^th Amendment gave Congress vast discretion^[16] to decide how best to purge racism from the electoral process. Even Donald Trump’s Department of Justice, which weighed in against^[17] the VRA, acknowledged that it is extraordinarily difficult to prove that a legislature acted with intentional racism. That’s why the Supreme Court has long deferred to Congress’ judgment, through Section 2, to forbid the dilution of minority votes, regardless of lawmakers’ proven intentions. Barrett’s evident desire to supplant that judgment with her own conviction that racism is a thing of the past represents the height of judicial hubris.

Justice Samuel Alito was even more aggressive in his beatdown of the VRA. He offered one weird trick to demolish the statute: simply pretend that racially biased maps were drawn for the sole purpose of favoring Republicans, not disfavoring Black voters. “If the objective is simply to maximize the number of representatives of a particular party,” he told Nelson, “that’s seeking a partisan advantage. It is not seeking a racial advantage.” A map that dilutes minorities’ votes, Alito said, might be targeting “partisan voting,” not “racial voting,” since these groups favor Democrats. And partisan gerrymanders are permissible^[18] thanks to the Supreme Court. Alito deployed this reasoning^[19] last year to uphold a brazen racial gerrymander in South Carolina. Now he wants to wield it as a cudgel against the VRA.

Justice Clarence Thomas was not particularly aggressive on Wednesday, but he is an avowed foe of the Voting Rights Act and has already announced^[20] that he thinks Louisiana’s map is unconstitutional. Chief Justice John Roberts didn’t say much, but tipped his hand when he sought to distinguish Callais from his own decision upholding the VRA just two years ago. Back then, he said, the court “took existing precedent as a given,” since no party asked for its reversal. Now, however, both the court and Louisiana have put “existing precedent” in the crosshairs, giving the majority a golden opportunity to overturn it.

The three liberal justices pushed back hard against all this doctrinal gaslighting. But they didn’t seem to convince their colleagues. Justice Sonia Sotomayor captured the perverse core of Louisiana’s argument when she pointed out that, under the state’s logic, the government can use race to hurt people, but not help them: Maps that diminish Black representation are fine, while maps that boost Black representation are unlawful. “You can use [race] to help yourself achieve goals that reduce a particular [racial] group’s electoral participation,” Sotomayor summarized, “but you can’t use it to remedy that situation. That’s what you want us to hold.”

And that is what the court will likely hold, in so many words, though it may dress up the ruling in legalese designed to obscure its catastrophic impact. Kavanaugh, Gorsuch, and others mused that they could tweak, refine, or clarify precedent like Gingles by radically rewriting it to rid race from the analysis. The court could, for instance, hold that neither courts nor legislatures may ever intentionally use race to create more majority-Black districts, or even consider race to assess the impact of a particular map. Or it could strike down Section 2 altogether. All these outcomes would lead to the same place: an electoral bonanza for Republicans and hobbled voting power for Black voters in Southern states. For decades, the VRA has limited Southern states’ ability to maximize GOP gerrymanders by carving up Black communities. Once SCOTUS defangs Section 2, it’ll be open season on majority-Black districts; Southern states will be free to slice and dice them for partisan gain. The best estimates show that a far-reaching decision in Callais could help Republicans net 15^[25] to 19 additional seats^[26] in the House of Representatives. This shift would make it nearly impossible for Democrats to win a House majority outside of blue-wave elections.

The Supreme Court’s Republican appointees know this. They are also smart enough to know that in a state like Louisiana, a map can be both racist and partisan, helping the GOP by discriminating against minority voters. And they are perfectly fine with it. In 2013, when SCOTUS dismantled a different provision of the VRA, Southern states started implementing voter suppression laws within hours. The effect of Callais could be even more disastrous. As brutal as these cases are for the Democratic Party, it is a mistake to view them exclusively through a partisan lens. Yes, the conservative justices obviously enjoy advancing Republicans’ electoral fortunes. But they are just as committed to an even broader project: transforming the Constitution’s guarantee of equality into a perpetuation of racial injustice.^[27][28]

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