The Supreme Court is on the verge of further limiting voting rights, thanks in part to Justice Brett Kavanaugh’s unfounded insistence that considering race can only be legal for a certain amount of time into the future — regardless of what the law and the Constitution say.
The Trump appointee’s misguided approach was on display during a major hearing Wednesday in Washington. It was there that he asked a lawyer for the NAACP Legal Defense and Educational Fund when race-based remedies should end. The question came in the context of the landmark Voting Rights Act and key post-Civil War constitutional amendments guaranteeing equal protection (the 14th) and prohibiting race discrimination in voting (the 15th).
The lawyer, Janai Nelson, said that there shouldn’t be a time limit and that the Voting Rights Act section in question — Section 2 — doesn’t even always require race-based remedies. Section 2 prohibits racially discriminatory voting practices or procedures, and it has become even more important after the Supreme Court, led by Chief Justice John Roberts, gutted another provision of the act in 2013.
The issue raised by Wednesday’s case, involving Louisiana’s congressional map, is whether the Roberts Court will likewise hollow out Section 2. The specific legal question that the court asked the parties to answer is whether the state’s creation of a second majority-minority congressional district violates those constitutional amendments.
While the precise contours of the forthcoming ruling remain to be seen, if it goes Louisiana’s way — and the hearing suggests it will in some form — its effects could be vast and lasting across the country, to the benefit of Republicans’ electoral prospects.
The Louisiana case could become the latest in a line of decisions from the Roberts Court embracing a theory of a “colorblind” Constitution.
Kavanaugh previously flagged the made-up time limit issue in a case from Alabama in 2023, when he and Roberts surprisingly formed a 5-4 majority with their Democratic-appointed colleagues to back a Section 2 claim. Kavanaugh wrote a concurring opinion that said “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” The Trump appointee noted that Alabama “did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
It appears the time has come. The Louisiana case could become the latest in a line of decisions from the Roberts Court embracing a theory of a “colorblind” Constitution, as the majority did in 2023 when it gutted affirmative action.
The high court majority’s discomfort with race carried into Wednesday’s hearing. There was a tone of: Can we just be done with all this race stuff already?
Whatever one thinks of that as a policy matter, the law and the constitutional amendments at issue don’t have the time limits that the majority appears to wish they did. And while those justices seem to want to forget the sordid history that made those legal tools necessary, or at least hope they’re no longer needed today, outlawing racial considerations for remedial purposes would also ignore the modern reality. Justice Elena Kagan observed at the hearing that Section 2 lawsuits “ask about current conditions, and they ask whether those current conditions show vote dilution, which is violative of Section 2.” She told the state’s lawyer, Benjamin Aguiñaga, that “what our precedents say and what you’re asking us now to change what our precedents say is that when those things operate currently right as of now and are proved in a courtroom, that — that still there can’t be a race-based remedy.” “That’s correct, Justice Kagan,” Aguiñaga replied. The result of curbing Section 2 would be “pretty catastrophic,” Nelson said at the hearing. She said that “any further neutering of Section 2 would resurrect the 15th Amendment as a mere parchment promise.” 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.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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