Copyright Everett Herald
By Noah Feldman / Bloomberg Opinion If the oral arguments are any indication, the Supreme Court may be about to achieve a remarkably bizarre outcome: using the Equal Protection Clause of the 14th Amendment to overturn a key provision of the Voting Rights Act, a law explicitly designed to achieve racial equality in voting. If that is indeed what the court does, it would be one of the most blatantly activist decisions of modern times, overturning a landmark civil rights law passed by Congress and upheld repeatedly by the courts. Analysts suggest the result could allow states to redraw districts in ways that immediately shift control of up to 12 congressional seats. The Supreme Court would be intervening in electoral politics in a way that is sure to erode further its already diminishing legitimacy; and make it appear overtly partisan in the process. Even if one believes the Supreme Court would be constitutionally correct in turning antidiscrimination law on its head, the timing couldn’t be worse for either the court or the country. Voting rights law has numerous technical aspects, so many that it constitutes an entire field of legal expertise. Please forgive a bit of simplification here to make the stakes clear. At issue in Louisiana v. Callais is Section 2 of the Voting Rights Act of 1965, as amended. As Justice Elena Kagan observed during oral arguments on Wednesday, Section 2, as currently interpreted, requires courts to ask of any given voting district: “Is there racial segregation, true racial residential segregation now? Is there racially polarized voting now?” If the court finds that “African Americans here are not being given the same voting opportunities as white people are, then a remedy is appropriate.” Ordinarily, the remedy involves the state drawing a new legislative district, one known as a “majority-minority” district. In such a district, the majority of voters are members of the racial minority (usually Black Americans) who are unable to elect a candidate of their choice because of the way the district was originally drawn. As Kagan explained, the “remedy doesn’t have to be race-based, but sometimes it is race-based in order to correct the … racially discriminatory situation that exists.” Kagan’s point was that, in practice, the state may have to draw a district specifically designed to enable a Black candidate to be elected, for the simple reason that the reality of past districting has prevented any Black representative from being elected. None of this is new or surprising. It’s the way the Voting Rights Act has always operated; and the Congress that enacted it in 1965 understood that it would. Without it, there would still be parts of the South, including Louisiana, where there would likely be no Black members of Congress; and there still has never been a Black candidate elected statewide. This is the consequence of the two factors Kagan mentioned: racially polarized voting, in which even white Democrats won’t vote for Black Democrats, and racially based residential segregation, a long-term effect of centuries of slavery, segregation and race-based discrimination. What makes the current case so potentially important — and so shocking — is that the court’s conservatives seem prepared to rule that a state cannot constitutionally design a district based on the objective of helping Black candidates get elected. Put technically, the justices appear ready to hold that the government lacks the compelling interest necessary to engage in racial “discrimination,” where the “discrimination” is simply the state’s court-ordered effort to counteract the voting discrimination that the Voting Rights Act is designed to combat. Expressed in ordinary, non-legal language, the conservative justices would be saying that it is unconstitutional to use the social reality of race as a remedy for racism. According to this view, the goal of equality cannot be achieved by effectuating an end to inequality. As Chief Justice John Roberts has put it, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The genuinely astonishing thing about using this principle of colorblindness as a tool to block Congress’ efforts to create a racially equal society is how it turns the basic idea of civil rights against itself. The origins of the American concept of civil rights lie in the necessity of reversing the structures of racism that underlay slavery, segregation and the systematic disenfranchisement of Black voters. The Voting Rights Act is perhaps the most fundamental tool that Congress created for achieving this goal. Along with the Civil Rights Act, it is one of the twin pillars of civil rights. At least some of the conservatives understand that it would be madness to say that the Voting Rights Act was always unconstitutional. Justice Brett Kavanaugh’s questions at oral arguments suggest that the way they will get around this problem is by asserting that there is a time limit or sunset on the use of racial considerations to help Black candidates get elected; and that the time has already lapsed. Obviously, if Congress thought a time limit was needed, it would have said so. And as Kagan pointed out, in any given application of the Voting Rights Act, a court will already have made factual findings about the existence of racially polarized voting and residential segregation. There is therefore no reason to worry that courts are relying on an assessment of facts that is actually out of date, contrary to the court’s reasoning when it struck down a different part of the Act in 2013. The upshot is that any constitutional ruling by the court that guts voting rights will amount to an arrogation of power that the Constitution gives to Congress. Worse yet, it is likely to affect the partisan balance in Congress; and it will make a mockery of the very reason the U.S. has civil rights law in the first place. The Supreme Court has enough trouble right now trying to maintain the rule of law in its struggle with Donald Trump. This is not the time for the court to reach an outrageously wrong result that will also read as partisan. Perhaps the more reasonable conservatives can find an off-ramp; for example, by saying that the time limit for race-based remedies will expire at some defined point in the future. If they don’t, the wreck that is coming will be disastrous for the court and its long-term legitimacy. Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
