The Supreme Court’s three liberal justices – Latina, White and Black women – sought during voting-rights arguments Tuesday to wrench the narrative of a colorblind America from the conservatives who currently dominate the bench.
Led by Chief Justice John Roberts, justices on the right have rejected policies that consider race, including in redistricting intended to boost the chances of racial minorities to elect their candidates of choice.
“It is a sordid business, this divvying us up by race,” Roberts wrote in a 2006 case.
Liberals, facing tough odds in Tuesday’s controversy from Alabama, tried to refocus the court on the fundamentals of the 1965 Voting Rights Act. Their forceful, if defensive, position may foreshadow arguments later this month over racial affirmative action in higher education.
The advocates who developed the lawsuits against Harvard and the University of North Carolina anticipated that the court curtailing voting rights is also poised to reverse precedents that allow schools to consider students’ race for campus diversity.
Tuesday’s case centered on a part of the landmark VRA, known as Section 2, that forbids electoral practices that deny a person the right to vote on account of race, as well as the US congressional map that Alabama drew after the 2020 census.
Alabama’s Black population is about 27%, but only one of its seven congressional districts has a Black majority. A three-judge US district court, hearing a challenge brought by Black voters and civil rights advocates, found that the map diluted Black votes in violation of Section 2. The court said it was possible to create a second majority-Black district based on traditional redistricting criteria tied to the size of the population and its geographical compactness.
But the Supreme Court blocked the lower-court decision earlier this year, and on Tuesday heard the state’s case.
Justice Elena Kagan leapt in first to criticize the Alabama effort to scale back Section 2’s protections, calling the Voting Rights Act “one of the great achievements of American democracy, to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as White Americans could. That’s a pretty big deal.”
Justice Ketanji Brown Jackson, the court’s newest member and its first Black woman, argued against Alabama officials’ emphasis on “racial neutrality” in redistricting, saying the Constitution’s framers adopted the Fourteenth Amendment’s equal-protection guarantee “in a race conscious way.”
“They were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in society. … That’s not a race-neutral or race-blind idea, in terms of the remedy,” she said.
Justice Sonia Sotomayor, the court’s first Hispanic justice, stressed that Section 2 was intended to ensure that “a particular racial minority … can equally participate.”
As a group, the high court’s conservatives largely held their fire. Justice Neil Gorsuch asked not a single question. Justice Clarence Thomas posed two relatively modest queries to Alabama Solicitor General Edmund LaCour and no questions to the lawyers challenging the Alabama plan, Deuel Ross and Abha Khanna, or to US Solicitor General Elizabeth Prelogar, also asking the justices to affirm the lower court.
Thomas, who is Black, has argued that racial remedies violate the Fourteenth Amendment guarantee of equal protection and, in practice, stigmatize the groups they are intended to benefit.
He has joined with Roberts in decisions narrowing the reach of the Voting Rights Act, most significantly in 2013 as the court dismantled so-called Section 5, which had required states with a history of discrimination to obtain federal approval before changing election practices.
In that opinion in Shelby County v. Holder, Roberts wrote, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Roberts’ broader view, as stated in a 2007 case rejecting school integration plans: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
During Tuesday’s case, Roberts declined to tip his hand on the particulars of the Alabama map, although his record would suggest some sympathy to the state’s position that simply because a majority-minority district could be drawn does not mean that it must be drawn. State officials contend that a second majority-Black district would require racial considerations in conflict with the Fourteenth Amendment and Voting Right Act itself.
Jackson countered that notion. “I don’t see that Congress is requiring race neutrality,” she said, observing that the law was intended to ensure that no “particular class of citizens” has “less opportunity” than another. “So it seems as though Congress is authorizing the consideration of race,” she said.
Kagan recalled that in the Shelby County v. Holder decision eviscerating the Section 5 “preclearance” rule for states with a history of racial bias, the court majority said Section 2 would still be available to remedy any continuing discrimination.
But, Kagan noted, a 2021 decision in an Arizona case took a step toward narrowing Section 2 coverage for potentially discriminatory ballot practices.
“And now here we are,” she said, observing that the Alabama controversy over voter dilution claims in redistricting was setting up the court to take another strike at the Voting Rights Act, “to cut back substantially on our 40 years of precedent to make this, too, extremely difficult to prevail on.”
She asked, “So what’s left?”
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