By tradition, U.S. Supreme Court justices do not speak to each other about cases they will decide until after oral arguments. But during oral arguments, they often speak to each other through the lawyers appearing before them. Two justices sent very clear messages to some of their colleagues through lawyers arguing Tuesday in a major voting rights case.
The justices were hearing Merrill v. Milligan, Alabama’s appeal of a three-judge district court ruling that the state’s 2021 congressional district map, enacted after the 2020 census, likely violated the 1965 Voting Rights Act because it discriminated on the basis of race. Section 2 of the act prohibits government from enacting voting practices or procedures that discriminate on the basis of race or color.
Alabama’s population is 27 percent Black residents, but Black Alabamians had the opportunity to elect a candidate of choice in only one of the new map’s seven congressional districts. The other six districts were dominated by white voters. A group of Black voters, civil rights organizations and Black community groups challenged the map. They argued that the map discriminated by “packing” a large segment of Black voters into a single Black majority district and “cracking” the remainder into majority white districts. The map, they claimed, diluted the Black vote in violation of Section 2.
The three-judge district court agreed, and it ordered the Alabama legislature to create a second Black opportunity district in time for the 2022 midterm elections. But five of the Supreme Court’s six conservative justices had another idea.
Alabama filed an emergency application asking the justices to block the district court order. In a 5-4 vote in February, the conservative majority allowed the discriminatory map to go into effect and said it would hear arguments on Alabama’s appeal in the new term eight months later. Chief Justice John Roberts Jr. dissented as did Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor.
Justice Kagan wrote a dissent joined by her two liberal colleagues. She and Roberts made clear that there was no good reason to block the lower court order, which was reached after a lengthy and thorough evidentiary hearing. That court had committed no errors.
By blocking the lower court order—without briefing, argument or written decision—Kagan said the majority was sending a message that the law had changed or was changing. Although not evident in February, her dissent would not be the end of what she wanted to tell a majority who she believed threatened once again to damage Section 2, the last remaining effective tool under the act for rooting out racially discriminatory voting practices.
During Tuesday’s arguments, she told Alabama’s lawyer that the district court had said the challenge to the congressional map was an easy case, not one of the boundary line cases. Under Supreme Court precedents, she added, “It’s kind of a slam dunk” and three district judges all found that. It seemed to her, she said, that Alabama was really telling the court “change the way we look at Section 2 and its application.”
Her next message was in the nature of a warning to the conservative majority and an alert to the nation.
In recent years, this statute has not fared well in this court,” she said. Kagan referred to two recent rulings. A 5-4 conservative majority in 2013 in Shelby County, Ala. v. Holder gutted Section 5, which required jurisdictions with histories of voting discrimination to get voting changes precleared by the U.S. Justice Department or a federal court in Washington, D.C. And she noted last year’s decision in Brnovich v. Democratic National Committee, in which a 6-3 conservative majority took a new approach to Section 2 that restricted that section’s use to remedy racially discriminatory voting practices.
Here we are with a Section 2 vote-dilution claim and you’re asking us to cut back on 40 years of precedent to make this too extremely difficult to prevail,” Kagan claimed. “What’s left?”
And freshman Justice Ketanji Brown Jackson, in a lengthy statement to the same Alabama lawyer, staked out her vision of originalism in direct contrast to her “originalist” colleagues, such as Justice Clarence Thomas. She questioned why the state’s lawyer argued that the state would violate the 14th Amendment’s equal protection clause if race were considered in drafting redistricting maps.
“I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about, and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.”
Those amendments were not understood to be a race-neutral or race-blind remedy. Their whole point was to secure the rights of the freed former slaves, Jackson said. The newest justice, appointed by President Joe Biden, was speaking to her conservative colleagues who have argued that the Constitution is color blind.
Race will be front and center again on October 31 when the justices hear arguments in two challenges to the use of race as a factor in the admissions policies of Harvard College and the University of North Carolina. Those challenges also are asking the court to change the law by overruling a 20-year-old precedent.
Kagan and Jackson may well be in dissent in the race cases this term, given prior views on race by their conservative colleagues, but Tuesday’s arguments showed they intend, at the very least, to make their voices heard.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
