While we rightly pay attention to how the Supreme Court is empowering President Donald Trump and his administration, the justices will hold a hearing Wednesday that highlights the Roberts Court’s priorities that predate Trump and will echo long after he leaves office.
Those priorities surface in the appeal, called Callais, with the question lurking in the background of whether the Constitution is “colorblind.” Though it isn’t the direct legal question in the case, it’s a notion that Chief Justice John Roberts and his Republican-appointed colleagues have embraced, notably in the Harvard case that gutted affirmative action in 2023. The Callais appeal raises the prospect of the court cutting out the remaining pillar of the landmark Voting Rights Act on similar grounds. The result could shape future U.S. elections and further help Republicans’ electoral prospects.
The court was set to decide the case on narrower grounds last term, but the justices failed to reach a decision in the dispute over Louisiana’s congressional map. Instead, they not only set the case for a rare re-argument this term but also asked the parties to brief a broader question in the process: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.” With that epic question, the court chose to make this case bigger than it was, further cutting against the fiction that the justices merely take cases as they come, as opposed to actively shaping their own agenda.
Colorblindness
Following the Roberts-led court’s hollowing out of another part of the Voting Rights Act in the 2013 Shelby County case, the remaining safeguard implicated by Callais is Section 2, which prohibits racially discriminatory voting practices or procedures.
The parties present opposing views on whether taking race into account when drawing districts can be necessary to realize the law’s promise or is necessarily anathema to the Constitution in 2025.
“Section 2 authorizes race-conscious remedies only where, when, and to the extent required to respond to a ‘regrettable reality’ of ongoing unequal electoral opportunity based on race,” lawyers representing Black voters wrote to the justices ahead of the hearing. Removing that section’s protections in Louisiana “will not end discrimination there or lead to a race-blind society, but it may well lead to a severe decrease in minority representation at all levels of government in many parts of the country,” they wrote.
Meanwhile, lawyers for Louisiana countered that the “invidious classifications underlying race-based redistricting present the last significant battle in defense of our ‘color blind’ Constitution.” They called the battle an “easy” one, citing the court’s statement in the Harvard affirmative action case that eliminating racial discrimination “means eliminating all of it.” The state said that means “no quarter for race-based redistricting.”
Four lawyers are set to argue to the justices, with attorneys from Louisiana and the NAACP Legal Defense and Education Fund Inc., as well as ones representing the Trump administration and “non-African American” voters.
Kavanaugh and the future of voting rights
Roberts and Justice Brett Kavanaugh will be two of the main justices to watch at the hearing. In 2023, they formed a surprising 5-4 majority with their Democratic-appointed colleagues to back Alabama plaintiffs’ Section 2 claim.
But Kavanaugh wrote a concurring opinion that seemed to approvingly cite an argument from Justice Clarence Thomas — who dissented — that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Kavanaugh noted in his concurrence that Alabama “did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
Mindful of Kavanaugh’s importance to the outcome, Louisiana’s lawyers cited the Trump appointee in writing ahead of the hearing that intentionally drawing a majority-minority district is “impossible” to do “without racially classifying citizens.” Quoting Kavanaugh, they wrote: “Hence the problem that ‘the authority to conduct race-based redistricting cannot extend indefinitely into the future.’”
Yet, lawyers for Black voters maintained in an opposing brief that Section 2 itself addresses Kavanaugh’s concern. The law “authorizes remedies only when necessary to cure proven racial vote dilution,” they wrote, “and only for so long as race-based discrimination impedes equal access to the political process.”
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
This article was originally published on MSNBC.com
