Justice Barrett's "Evil Day" and Other Infuriating Lowlights From the Voting Rights Act Oral Argument
The instant consensus--with which I agree--is that last Wednesday's oral argument in Louisiana v. Callais portends the final step in the Roberts Court's destruction of the Voting Rights Act (VRA). I won't dissect it all. Instead, I'll discuss the pivotal claims made by Justice Barrett and a couple of other lowlights. But first, a brief synopsis.
Section 2 of the VRA forbids the use of voting standards or practices that have the effect of diluting the voting strength of a racial group, regardless of whether or not the standards or practices were adopted for that purpose. That is plain from the provision's text and the legislative history that led Congress to amend Section 2 in 1982. It is also confirmed by cases like Thornburg v. Gingles nearly forty years ago. At issue in Callais is whether a state--acting on its own or as ordered by a court--is permitted to remedy a Section 2 violation by deliberately taking account of race to draw majority-minority electoral districts or so-called "influence districts" in which members of a racial minority group (invariably African Americans in most cases, including Callais) have a realistic chance to exercise their votes in ways that affect the outcome.
The plaintiffs in Callais are white voters who find themselves in districts in which they are likely to be outvoted by Black voters (and possible white Democratic allies thereof). They argue that the creation of a majority-minority district was the kind of race-conscious decision that triggers strict srutiny--and that compliance with Section 2 of the VRA does not constitute a compelling interest that can satisfy it.
The plaintiffs rely on, among other precedents, the Court's rejection of most affirmative action in Students for Fair Admissions (SFFA) v. Harvard. Yet, as NAACP LDF President and Director-Counsel Janai Nelson noted during last week's argument, SFFA reaffirmed the familiar proposition that remedying past discrimination is a compelling interest that can justify the use of racial classifications. That's what's going on here, she said: if there is a violation of Section 2 per the Gingles test, that means that there is not just past discrimination but current unlawful state voting rules or standards. Thus, Ms. Nelson argued that SFFA actually supports upholding the majority-minority district at issue in Callais.
The lawyers on the other side pushed back by distinguishing constitutional violations from statutory ones. In other settings, they said, intentional race discrimination triggers a remedial obligation that can, if necessary, include the use of race-based remedies. However, they said, remedying violations of the effects-based test of Section 2 is different. Those effects aren't themselves constitutional violations, so remedying them isn't a compelling interest.
As Justice Kagan pointed out most forcefully, however, the Supreme Court held in landmark cases including South Carolina v. Katzenbach and City of Rome v. United States that the VRA validly implements Congress's power to enforce the Fifteenth Amendment. Indeed, in City of Boerne v. Flores, even as the Supreme Court was holding that the Religious Freedom Restoration Act was not within Congress's power to prevent or remedy violations of the Fourteenth Amendment, the Court pointed to the VRA as an example of Congress validly adopting a statutory effects test as a means of enforcing an underlying constitutional right against intentional discrimination. If remedying unconstitutional discrimination is a compelling interest (as SFFA and numerous other cases say and as no one in Callais disputes), and if the VRA validly implements the antidiscrimination norm of the Fifteenth Amendment, then why isn't compliance with the VRA necessarily a compelling interest?
Justice Barrett provided the closest thing to an argument that would answer that question. Justice Jackson had insisted that Section 2 of the VRA was not a remedy but a substantive obligation that, when violated, sometimes results in a race-based remedy. Justice Barrett offered a different take. She suggested that VRA Section 2 could itself be conceptualized as a remedy for violations of the Fifteenth Amendment. In so doing, she assumed that the congruence-and-proportionality test of Boerne for congressional power under the Fourteenth Amendment also applies to the Fifteenth Amendment--which (as Justice Kagan pointed out) is not something the Court has yet said. Putting that objection aside, Justice Barrett's key move was to say that if Section 2 is a remedy, then, like other race-based remedies, it needs to be time-limited, and time's up--or at least time might be up.
Ms. Nelson and various of the liberal Justices pushed back. What do you mean, time's up? The whole point of Gingles is to detect a current violation. Yet, the logic of Justice Barrett's question is that that doesn't matter, because what Gingles detects is a current violation of VRA Section 2, not necessarily of the Fifteenth Amendment. The logic appears to be this: When the VRA was adopted and for some time thereafter, its effects test was justified as a means of detecting intentional discrimination that is difficult to prove directly, but at some point discriminatory effects are just effects, no longer indicative of discriminatory intent--and when a voting standard is facially race-neutral, it violates the Fifteenth Amendment only if it implements discriminatory intent.
There are three difficulties with this line of reasoning. First, why assume that the Fifteenth Amendment applies only to discriminatory intent and not to discriminatory effect, which can be an instance of structural racism? I'll put that difficulty aside, however, because the problematic assumption that structural racism either doesn't exist or is constitutionally unobjectionable pervades the Supreme Court's equal protection jurisprudence, whether directly under the Fourteenth Amendment's Equal Protection Clause or indirectly under the equal protection component of the Fifth Amendment's Due Process Clause or the Fifteenth Amendment.
The second difficulty is Justice Barrett's apparent assumption that times have changed so much since the VRA's adoption in 1965 and amendment in 1982 that a once-valid inference from racially disparate effects to racially discriminatory purpose is no longer justified on the facts. That's fanciful, as demonstrated by the re-emergence of various forms of disenfranchisement of Black voters since the Supreme Court gutted Section 5 of the VRA twelve years ago in Shelby County v. Holder. I might also make the same point less politely by pointing to the re-emergence of open racism under an openly racist president and administration.
The third difficulty with Justice Barrett's suggestion that time is up on treating Section 2 of the VRA as valid is her implication that, absent some special time-limited circumstance, laws forbidding discriminatory effects are themselves constitutionally suspect. In 2009, in a concurrence in Ricci v. DeStefano, Justice Scalia purported to worry about the coming "evil day" when the Court would need to confront the question whether that is so--whether laws barring disparate racial impact unconstitutionally lead to considerations of race. I say Justice Scalia only purported to worry because it was reasonably clear from what he wrote in his Ricci concurrence that he would welcome the opportunity to strike down laws forbidding discriminatory effects. It likewise appears that Justice Barrett is looking forward to the evil day when she can author or join a majority opinion dispatching Section 2 as an unconstitutional effects test.
She probably won't have to wait very long. Resolution of the questions on which Justice Barrett focused might well control the outcome in Callais.
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Before concluding, I would call attention to statements during the argument by Justices Alito and Gorsuch that, while not likely as consequential as Justice Barrett's concerns, were nonetheless infuriating.
Justice Alito thought the district court findings in a case that was antecedent but technically separate from Callais were misguided because they drew conclusions about the voting district maps in question without adequately separating racial considerations from political ones. In so doing, he repeatedly characterized political gerrymandering as perfectly constitutional. Here's an example drawn from a question he asked Ms. Nelson: "if incumbent protection is a permissible districting criteria [sic], then, under Rucho [v. Common Cause], isn't seeking partisan advantage also an objective that a legislature may legitimately seek?"
There and elsewhere in the course of the oral argument, Justice Alito treated the Rucho decision as validating partisan gerrymandering. But that's not what Rucho held. It held that federal court challenges to partisan gerrymandering present non-justiciable political questions. Saying Rucho legitimized partisan gerrymandering is like saying that Nixon v. United States (which held that a challenge to the procedures the Senate used to conduct an impeachment trial of a federal judge presented a non-justiciable question) validated Senate conviction during an impeachment trial based on a coin toss or the conclusion that the judge was a "bad guy"--which were scenarios offered by Justices who concurred only in the judgment in Nixon. To conclude that an issue is nonjusticiable means only that the courts cannot act to stop the complained-of conduct. It does not mean that the conduct is legitimate or constitutional.
Finally, consider Justice Gorsuch's performance in Callais. He asked Ms. Nelson some version of the question what she thought it took for a state to be able "to use a map on the remedial side that intentionally discriminates on the basis of race." There ensued an excruciatingly frustrating back-and-forth--covering nearly all of pages 35-38 of the argument transcript--because Justice Gorsuch kept using the term "intentionally discriminates on the basis of race" to include any and all race-conscious remedies, whereas Ms. Nelson understood the term "discriminates" to be pejorative, i.e., the conclusion one draws if a use of race is illicit.
It was painfully obvious to me as I listened to the exchange that Justice Gorsuch and Ms. Nelson were using the term differently, but it was not until Justice Gorsuch finally gave up that Justice Kavanaugh made the obvious point: "I guess the hang-up there is the word 'discriminate.'" That's precisely right, but I don't think (as perhaps Justice Kavanaugh thought) that there was simply a misunderstanding between Justice Gorsuch and Ms. Nelson.
It would be a misunderstanding if Justice Gorsuch thought that the word "discriminate" can only ever be used to mean "make a distinction," but surely he must be aware that it can also be used to mean "make an illicit distinction." And if he's aware of that fact, then he was essentially bullying Ms. Nelson--trying to get her to acknowledge that what she was seeking was what conservatives sometimes pejoratively call "reverse discrimination."
It was, in nearly every respect, a dispiriting oral argument, even if one sets aside the likely practical impact of the expected ruling for what's left of American democracy.