Tucked away in the Supreme Court’s flurry of end-of-term decisions earlier this month was a seemingly innocuous one on redistricting and race in Louisiana. The justices announced, in an unsigned order, that the court would rehear Louisiana v. Callais when the court reconvenes in the fall.
“These cases are restored to the calendar for reargument,” the court said. “In due course, the court will issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing.”
The court did not tip its hand on how the individual justices voted, nor did it explain why it would rehear the case this fall. It also has yet to announce “any additional questions” for the litigants to address, though it almost certainly will before the court reconvenes in October.
By not deciding the case at hand, however, the justices took a momentous step that will alter the nation’s political geography. The Supreme Court appears poised to use Callais as a vehicle to rule that Section 2 of the Voting Rights Act of 1965 cannot be used to remedy racial gerrymandering by state legislatures.
Callais began as every redistricting case does: with the most recent census. While Louisiana neither gained nor lost a congressional seat after the 2020 Census, state lawmakers still redrew their legislative maps to account for population shifts within the previous boundaries. The Republican-led legislature enacted a visibly gerrymandered map with five reasonably safe GOP seats and one extremely safe Democratic seat centered on New Orleans.
Shortly after the map was signed into law, a coalition of voting-rights groups sued the state via Section 2, arguing that the revised congressional districts amounted to racial gerrymandering. The plaintiffs alleged that the legislature had packed as many of the state’s Black voters into a single majority-minority district as they could to dilute their overall political power. One-third of Louisiana residents are Black.
A federal district court agreed with the plaintiffs in 2023 and ordered the state legislature to draw new maps with a second majority-minority district by a certain deadline or else it would draw them itself. After the Fifth Circuit Court of Appeals upheld that ruling, the state legislature approved a new map that redrew Louisiana’s sixth congressional district to be majority-minority in January 2024.
That would normally be the endpoint for a racial gerrymandering dispute. After the new maps were approved, however, a new group of plaintiffs who described themselves as “non-African American voters” filed a new racial gerrymandering challenge to the redrawn sixth district. A different federal district court agreed with those claims, concluding that the state legislature had impermissibly used race to redraw the map in 2023. Both the state and the civil rights groups in the initial case then urged the justices to overturn the second court’s ruling.
In theory, this should have been an easy decision for the Supreme Court. The state and the original plaintiffs argued that the 2023 redistricting could not itself amount to racial gerrymandering because it was compelled by a court order to remedy racial gerrymandering. “The [Supreme] Court has long assumed that compliance with the [Voting Rights Act] is a compelling interest—and that assumption is particularly apt here given the Legislature’s efforts to comply with court decisions that themselves articulated what VRA compliance requires,” the original plaintiffs told the court in their brief.
Complicating matters is the conservative majority’s growing hostility to racial gerrymandering cases. In 2023, while Louisiana’s first legal battle over adding a second majority-minority district was underway, the Supreme Court issued a surprise ruling in Allen v. Milligan that upheld a similar ruling to create one in Alabama. Roberts and Justice Brett Kavanaugh joined with the court’s three liberal justices to form the majority.
Even in victory, there was an ominous sign for future voting-rights cases. Kavanaugh wrote a concurring opinion where he suggested that he might be willing to roll back the courts’ power to remedy racial-gerrymandering claims through Section 2. Congress bolstered that power by amending the provision in 1982 to prohibit states from enacting voting laws that had a racially discriminatory effect. This included claims of vote dilution, where states would draw legislative maps or create electoral methods that reduced the efficacy of a racial minority’s voting power.
In the 1986 case Thornburg v. Gingles, for example, the justices struck down a congressional map in North Carolina that used an unusual combination of single-member districts and multi-member districts in some counties. The Supreme Court agreed with the plaintiffs and the lower courts that the legislature’s effect was to dilute Black voters’ electoral power. Along the way, the court laid out the factors that could be used to determine future vote-dilution cases.
In Milligan, one of Alabama’s arguments was that this framework, which allows courts to remedy racial-gerrymandering claims by ordering or drawing new maps, itself amounts to race-based redistricting and therefore violates the Equal Protection Clause. Roberts noted in his majority opinion that the Supreme Court had held otherwise for the last four decades, and Kavanaugh observed that “the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents.”
Kavanaugh then opened the door to another avenue of attack. “Justice Thomas notes [in a dissenting opinion], however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future,” he added. “But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” By highlighting this argument and implicitly agreeing with it, he invited litigants to bring it before the court in future cases.
The temporal argument, as Kavanaugh phrased it, is telling. In the mid-20th century, the federal government dismantled nearly all of the legal architecture of Jim Crow racial apartheid in the American South and elsewhere. Congress enacted powerful laws like the Voting Rights Act that created new tools to challenge specific laws and practices. The Supreme Court’s liberal majority overturned past errors like Plessy v. Ferguson, which entrenched de jure racial segregation, and breathed new life into the Reconstruction-era amendments.
The Roberts Court is apparently unwilling to strike down those laws or overturn those rulings on the merits—that is to say, they have yet to rule that those civil rights efforts were unconstitutional in the 1950s or 1960s. Doing so would be tantamount to embracing Jim Crow again. Instead, they have argued that the laws and rulings are no longer permissible because they solved the problem, or at least have done so sufficiently to render them unnecessary.
In the 2013 case Shelby County v. Holder, for example, Roberts led the conservative majority in gutting Section 5 of the Voting Rights Act, which required jurisdictions with a persistent history of racial discrimination to seek preclearance when changing their election laws or policies. His “equal sovereignty of the states” theory was gloss for the court’s actual rationale, which could be boiled down to “things have changed.” Southern states, once freed from preclearance, soon drifted back into old habits.
Two years ago, in Students for Fair Admissions v. Harvard University, the justices struck down affirmative-action programs in college admissions for violating the Equal Protection Clause. The Supreme Court had initially allowed such programs as a remedy for generations of racial discrimination, though Justice Sandra Day O’Connor suggested in a 2003 case that they might not be permissible forever. “Twenty years later, no end is in sight,” Roberts wrote for the majority as he swung the axe.
Kavanaugh’s reference to Thomas’s thinking on racial gerrymandering was also revealing. The court’s seniormost justice has long argued that the courts have no power to remedy racial gerrymandering at all, and that Section 2 is unconstitutional to the extent it grants courts that power. Thomas’s insistence on an absolutely colorblind Constitution would effectively treat the cure—a court ruling that orders a state to redraw its discriminatory and dilutive legislative maps—as worse than the disease that the ruling sought to treat in the first place.
That brings us back to Callais. The court heard multiple questions in the case; none of them were about the constitutionality of Section 2 or the Gingles framework. Kavanaugh asked the state of Louisiana and the “non-African American” plaintiffs about their positions on what he called the “durational limit on the authority of Section 2” during oral arguments. The plaintiffs happily agreed with it. The lawyer arguing on behalf of Louisiana noted that while the state had taken that position in briefs before the court and had adopted it in other ongoing redistricting-related cases. But, he noted, it had not done so in the lower courts in Callais, so it was not squarely before the justices.
The court’s internal deliberations are secret and the justices do not publicly discuss them, so it is impossible to say with certainty why they punted Callais to the next term. From all of this context, however, we can venture an educated guess: There are likely enough votes to rule on the constitutionality of Section 2 itself in racial-gerrymandering cases, but a critical mass of justices in that majority wanted to have that question briefed and argued before rendering a decision. The justices did something similar in Citizens United in the spring of 2009, where they punted the case to the following term so they could more squarely decide the constitutional question that arose during the first round of oral arguments.
Thomas’s dissent from the court’s move in Callais gives strong credence to this theory. It is already rare for the court to punt cases for the next term; it is even more rare for a justice to publicly dissent from reargument. (I am not aware of a previous instance where it has happened.) The only logical reason to dissent from reargument is if one thinks the court could properly decide the case without further delay. And the only reason for Thomas to be unhappy with that delay is if he thinks he’s already won.
Part of Thomas’s argument is that voting-rights cases are inherently different: they are heard by special three-member panels of federal district-court judges, and the Supreme Court is required by law to hear an appeal of those panels’ ruling if asked. “We should have decided these cases this term,” Thomas wrote. “These are the only cases argued this term in which our jurisdiction is mandatory. That an Act of Congress requires that we decide these cases should have prompted us to resolve them expeditiously.”
That is a reasonable position to take and it does not tip off anything about the court’s internal deliberations to argue it. But Thomas did not stop there. He instead delved into the likely merits of the upcoming reargument. “These cases put the court to a choice: It may permit patent racial gerrymandering under the auspices of Section 2 compliance, or it may admit that, as the court has construed the statute, a violation of Section 2 is insufficient to justify a race-based remedy,” he wrote. “That decision should be straightforward. Nevertheless, the court demurs.”
There is a palpable sense of frustration in Thomas’s dissent, one that might be explained by watching his conservative colleagues come around to his position on racial gerrymandering, only to see them delay it until the next term. Perhaps he fears that some of them might waver in the interim—Roberts and Kavanaugh could pull a Milligan again, after all—and the opportunity will be lost. In any event, his dissent makes no sense if the court is not going to consider Section 2’s constitutionality next term.
If the court guts Section 2’s remedial power in racial-gerrymandering cases, it will have immediate consequences for the nation’s political landscape. Republican-led state legislatures would be free to redraw their maps to eliminate any court-ordered majority-minority districts. They would also face far fewer constraints when drawing maps that dilute Black and Hispanic voting power to bolster the GOP’s electoral chances.
Texas, for example, has eleven majority-minority districts. The New York Times reported last month that the White House, apparently fearing the loss of its narrow House majority next year, pressured that state’s congressional delegation to support redrawing the state’s legislative maps. (While the Constitution requires that states redraw their maps after each census, there is technically no reason why they can’t do it more often than that.) To that end, Governor Greg Abbott announced earlier this month that he would call a special session where redistricting would be on the agenda.
That strategy isn’t without risks: As Politico noted last week, moving enough “blue” voters into “red” districts to dilute their overall strength could ultimately backfire by making those districts more competitive, and thus more vulnerable in a wave election. But it is apparently one that the GOP thinks is worth taking to consolidate what it hopes will be a permanent hold on American governance. The only question now is whether the Supreme Court will play along.
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