The One Possible Bright Spot in the Supreme Court’s Massive Voting Rights Act Case

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On Wednesday morning the Supreme Court heard what may become the most consequential voting rights case of our lifetimes^[2]. In Callais v. Louisiana, the court stands poised to either end or severely restrict the scope of Section 2 of the storied Voting Rights Act of 1965, the vehicle by which the courts and the Constitution protect against racialized vote suppression. If the court ultimately opts to do so—and oral argument signaled as much—the consequences for a multiracial democracy would be widespread and catastrophic. In a bid to turn the Reconstruction Amendments into weapons to protect white people from discrimination, the Roberts court may not only upend decades of precedent and clear congressional mandates, it could also reshape the future of how we vote for years to come. On this week’s Amicus^[3] podcast, Dahlia Lithwick spoke to Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund. She is a longtime litigator and civil rights scholar. She argued in defense of the Voting Rights Act during Callais arguments at the Supreme Court on Wednesday. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: One thing that immediately stood out at Wednesday’s arguments is that it’s not usually the head of the NAACP Legal Defense Fund who argues cases before the Supreme Court. As you and your team made the decision that you would personally argue this case, what were you thinking about in terms of the stakes of what is happening in this litigation?

Janai Nelson: You’re right. It is a rare thing. I happen to have a legacy of former presidents and directors-counsels who have argued before the Supreme Court, so this was not a total aberration. To be honest, apart from a small hearing done virtually during COVID, I haven’t argued in a decade because that’s what I leave to the rest of my brilliant and extraordinary legal team.

But this case is so important. It is such a pivotal moment potentially for our multiracial democracy that I felt it was necessary for us to commit every possible resource to this fight. And that included me being part of it. The team that led this case up until this point has just been extraordinary and helped to prepare me for the oral argument, along with our co-counsel at the ACLU. I think it carries on an important legacy for our institution. But most importantly, it mattered to me because this is such a consequential moment for all of us.

The alarm bells started ringing when the high court held this case over from last term. It had already been argued in March of this year. In June, SCOTUS said it wanted to hear it again this term, but on a different question. That question is kind of a bullet to the heart of Section 2 of the Voting Rights Act: whether Louisiana’s intentional creation of a second majority-minority district violates either the 14^th Amendment or the 15^th Amendment—which bars the government from denying or restricting voting rights based on race. The question put to you is, essentially, does Section 2 violate the directive of a colorblind 14^th Amendment? There’s a lot of arguing on the other side about whether to go big, or to go small—to get rid of Section 2 altogether, or just to further cabin it. But in all cases, this is a big swing for a court that has previously tended to do a little bit of nibbling around the edges before they take a big swing. It’s hard to see this as anything but the majority on the Roberts court saying it’s time to take that big swing at Section 2. 

I was very dismayed when we initially got the order because I felt the court had everything it needed to do the right thing. That said, I have a hard time understanding how this court can write an opinion 28 months after Allen v. Milligan^[4], which was not just a decision in our favor that just summarily affirmed what we wanted affirmed, but it actually went into quite a bit of detail and answered a number of challenges brought by the state of Alabama at the time to Section 2 of the Voting Rights Act that mirrored much of what Louisiana said in its papers in this court. And so the court had already decided a lot of these issues. They challenged the constitutionality of Section 2, which has been decided many times and is on very firm footing constitutionally, and the court said, No, that goes against decades of our precedent. We will not entertain this. They tried to overlay this notion of colorblindness onto Section 2, and the court said, No, that’s not what this is about. Section 2 is designed specifically and very carefully by Congress to address racial discrimination in voting, so race is part of the calculus. In fact, Chief Justice Roberts said, “That’s the whole point of the enterprise.” The language could not have been stronger; the language could not have been clearer. It’s hard to think about how this court is going to potentially write a decision that would undermine such a formidable one and such a recent one. I remain hopeful about the outcome of this case.

I do that not just because obviously I think we are on the right side of the law, but also from experience. People thought that Allen v. Milligan was dead on arrival. People thought that case was unwinnable, and we won, and we won in a big way. So I am continuing to be very hopeful that the court will do the right thing. In many ways, this is just an extraordinarily easy case, and they can make it work by just allowing us to continue to move forward with a good map that remedies the discrimination.

Justice Kagan made exactly the point that you just made: Every single central issue has been dismissed by the court very recently, how is it that we’re back here?  

But it does raise this question of precedent. Allen v. Milligan was decided under almost identical circumstances. The majority appears to not only be trying to somehow distinguish and claim that these cases may look identical, but they’re not really the same. And at the same time, some justices were also trying to make the iconic 1986 case of Thornburg v. Gingles go away. It was amazing to hear this conversation that was basically, how could we rid ourselves of this pesky precedent? Including a jarring moment where Chief Justice Roberts was claiming that Milligan took the existing precedent as a given and they were only looking at Alabama’s challenge, but now we’re asking you to basically revisit precedent. I can only imagine the deep oddity, as a litigator, of having the court essentially say, “Precedent, shmecedent, let’s start from scratch and ignore all that.” ^[5]

It was somewhat surreal. I was sitting down because I had already given my affirmative argument. There were three opponents on the other side, one representing the state of Louisiana, one representing the plaintiffs who were challenging the state’s remedial map, and then another representing the United States government. And they were all talking quite passionately about ways to just dismantle this case limb by limb and get rid of what has frankly been the tool to help build this multiracial democracy that so many people take for granted. Most people don’t understand how this democracy came to be, that this was not just evolution, this was actual litigation that brought it into existence.

It was disturbing to see justices of the Supreme Court also engaging in that colloquy of how do we just abandon a case from 1986? Thornburg v. Gingles was decided in 1986. It has been enforced with great frequency and rigor in the years since, but not as frequently in the past 10 years. As conditions have improved, we have not been able to succeed in litigation in the same way. And that’s frankly, at the end of the day, what I think the justices want? They want progress on racial discrimination in voting and they want an exacting test that weeds out some of the cases that they don’t feel are the strongest ones or that are the best examples of the most intensive racialized politics. So the field has already been narrowed quite significantly through Gingles. There’s absolutely nothing wrong with the Gingles test.

There were some other bizarre moments, beyond the “how can we ignore precedent?” colloquies. Justice Gorsuch asking, “Is it acceptable under Section 2, as you understand it, for a court to intentionally discriminate in a remedial map on the basis of race?” In other words, we can’t use race for anything anymore ever, even though it’s expressly in the text of the statute and in the 14^th and 15^th Amendments. Another was the sell-by date argument beloved by Justice Brett Kavanaugh. The idea that with all racially remedial measures, at some point you have to open the fridge and throw them out. But in this context, as you said at argument, there’s nothing that demands a sell-by date, right?

That’s right. First of all, there’s no basis in our precedent to suggest that any statute must be dissolved simply because of the passage of time. There’s absolutely nothing that says that must happen. And in fact, I can’t really point to any statutes that I’m aware of where the court has taken that action recently. So to single out the Voting Rights Act, which the court has held is the crown jewel of civil rights legislation, is absolutely shocking. It is shocking to think that’s the place where you want to begin to say that statutes must be dissolved.

The other reason is the Voting Rights Act is an extension of the 14^th and 15^th Amendments. It’s meant to effectuate the mandates in both of those constitutional amendments, and those are permanent rights. So the statute that protects those rights and gives guidance on how to enforce those rights should also be permanent. Nothing has changed since the court assumed all of the constitutional matters that Alabama raised just two years ago. Nothing has changed in the interim except some conditions that are external to the court, which should not matter. So I am very concerned that what seems like a pretty innocuous argument of a sell-by date is even being entertained.

As much as Justice Kavanaugh is attracted to this sell-by date argument, he’s also someone who is a strong defender of stare decisis and separation of powers. Those are two areas where he has been very vocal in his decisions. And the separation of powers issue actually defeats the whole sell-by date argument as well. When Congress wanted to limit the duration of a part of the Voting Rights Act, it did it. It did it quite explicitly. It did it with Section 5. Section 5 was a part of the Voting Rights Act that had to be reauthorized every several years, and Congress continued to extend the dates and was very clear about the record that was needed to do so. It never suggested that Section 2 should be reauthorized or that it had any end date. And so if anyone’s just looking at statutory interpretation, they would know that Section 2 doesn’t need an end date. If we zoom out just to the broader question about the Voting Rights Act as a whole, Congress could decide at some point that we no longer need the Voting Rights Act. It hasn’t. The court should not be the one to override Congress’ judgment.

So this case raises so many issues of deep concern, not only about the specifics of the case, but about the court’s potential overreach into areas that have historically not been its domain. We really need to respect the independence of each institution as a check on the other. If we start to erode those barriers, we will be in much more of a constitutional crisis than I think we already are.

What do you want to say to people who are trying to understand an immense amount of legal material following these arguments, material that they know is important, but they’re not entirely sure how this is going to go?

I don’t think many Americans pay much attention to the role the Voting Rights Act has played in shaping, forming, protecting, advancing our democracy. Because it arose from the Civil Rights Movement, many people believe that it’s a law that just protects certain types of people and it’s really not their business. But the Voting Rights Act is the birth certificate of our democracy. This case is of extraordinary importance to every single American who cares about how the court rules, whether it respects its own precedent, and importantly, how it treats this critical law that I believe is the stitching on the fabric of our democracy.

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