How the Supreme Court Came to Accept a Practice It Called Unjust

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Seven years ago, midway through a multiyear demolition of the Voting Rights Act, John Roberts’s Supreme Court heard a case on a slightly different topic: partisan gerrymandering. Republican legislators from North Carolina had drawn a map of U.S. House districts that courts, including the high court, had found was an unconstitutional racial gerrymander under the VRA. So the North Carolina lawmakers tried again, this time going out of their way to make clear that they were trying to reduce Democratic representation, not Black representation.

The gambit worked. Roberts, writing for the majority, lamented that partisan gerrymandering was pernicious and unfair. “Excessive partisanship in districting leads to results that reasonably seem unjust,” he wrote in Rucho v. Common Cause. But the majority nonetheless concluded that federal courts had no role to play in policing partisan gerrymandering, because it was a political question. Still, Roberts didn’t want that to seem like an endorsement: “Our conclusion does not condone excessive partisan gerrymandering.”

That was then. The conservative majority’s decision in Louisiana v. Callais last week doesn’t just tolerate but encourages states to embrace partisan gerrymandering as a justification for squeezing out majority-Black districts. As politicians work through the impact of the decision, Republican-led governments in Louisiana, Tennessee, and Alabama have all announced plans to try to redraw maps this week, and South Carolina’s legislature may not be far behind. The mission will be drawing the most ruthless partisan gerrymanders they can, in the hopes of protecting the GOP majority in the U.S. House.

This is what Justice Samuel Alito, the author of the Callais opinion, recommends. Discarding the Court’s old requirement, which said that mapmakers must consider whether minority voters were numerous and concentrated enough to constitute their own district, Alito wrote that plaintiffs must provide strong evidence that minority voters were intentionally targeted for their race. But he also offered an escape hatch, the law professor Richard L. Hasen explains: Even if a state “likely could have drawn a map favoring minority voters” but didn’t, “the state can defend itself by (wait for it … ) admitting to engaging in partisan gerrymandering.” In other words, as the scholar Joshua A. Douglas puts it, partisan gerrymandering “has become an absolute defense to any claim of racial discrimination under Section 2 of the Voting Rights Act.”

The fundamental ideology of the Callais majority is “color-blindness.” In a 2007 case undermining affirmative action, Roberts articulated the idea plainly: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That’s the sort of glib comment that sounds like an argument ender as long as you don’t think too much about it. But it’s no coincidence, as my colleague Adam Serwer wrote last week, that the earliest advocates for color-blindness were reinvented segregationists.

In the color-blindness framework, any discussion of race is itself seen as impolite, the political scientist Julia Azari notes. Alito’s opinion hurriedly states that “vast social change has occurred throughout the country and particularly in the South, which have made great strides in ending entrenched racial discrimination.” This is true as far as it goes but also highly tendentious, writing off both existing disparities and the important role that the VRA has played in combating discrimination. (The late Justice Ruth Bader Ginsburg likened abandoning parts of the VRA because of reduced discrimination to throwing away one’s umbrella during a storm because one isn’t yet wet.)

Alito acknowledges that Black voters tend to be Democrats in the South, but his allegiance to color-blindness prevents him from thinking too deeply about why. It is not some weird coincidence but the result of Democrats taking up the cause of civil rights, and Republicans becoming consistent opponents. This makes Alito’s argument that Black Democrats are losing representation because they are Democrats, not because they are Black, incoherent. “To ‘control for partisanship’ when assessing racial gerrymandering is to erase the very mechanism through which racism travels,” the political scientist Jake Grumbach writes.

The fallout from Callais stands a good chance of making the relationship between race and partisanship even stronger. Black voters have some good critiques of the Democratic Party, but watching Republican-led governments race to redraw maps to eliminate Black representation is unlikely to push them to the GOP. Then again, it may not matter: If mapmakers are empowered to draw ruthlessly partisan maps that are also racially discriminatory, the views of Black voters in some places, especially in the South, will simply not be electorally relevant.

In his 2019 opinion in Rucho, Roberts portrayed his decision to allow partisan gerrymandering as rooted in humility and restraint about the proper role of the judiciary, despite his dislike of extremely partisan maps: “No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” It is ironic, then, that Roberts and his allies have had no compunctions about trashing the VRA, a law duly passed and renewed by Congress. Their hubris will bring about an efflorescence of the same partisan gerrymandering that Roberts claimed to detest.

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Supposedly, the menstrual cycle is a gift. It’s a product of good design. It’s a miraculous dance of hormones that can’t be contained. Such are the messages flooding the internet these days, courtesy of lifestyle influencers, crunchy moms, so-called hormone coaches, and all sorts of popular entertainers.

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