Let's look at the latest voting rights decision before returning to Roberts vs. Trump.
There is understandable dismay and outright disgust with last week's voting rights decision--mine included. But any shock and surprise about Louisiana v. Callais, whether from the dissenting Justices or liberal commentators, seems a bit forced. Anyone following the persistent direction of the Court's decisions on racial preferences over the last 40 years had to know that this was inevitable.
At least since 1986, with conservative appointees of Presidents Nixon and Reagan taking control of the Court, the predominant view among the Justices has been a discomfort, if not outright hostility toward so-called "reverse discrimination." Race-conscious policies, even to redress the lasting effects of the historic discrimination against Blacks in this country, have been viewed as invidious--even if sometimes tolerated--discrimination on the basis of race.
The protection of "insular and discrete minorities" had previously been understood to be the primary purpose of the Constitution's post-Civil War guarantee of equal rights. The elimination of government-approved mistreatment of minorities was recognized as the motivating policy underlying the Equal Protection Clause of the 14th Amendment. The most celebrated footnote in Supreme Court history--Justice Harlan Stone's footnote 4 in the Court's 1938 decision in U. S. v. Carolene Products Co.--articulated that rubric.
Accordingly, the protection of historically oppressed minorities remained established constitutional law for a while. But later, ideologically conservative Republican appointees began to revise the aim of equal protection and the concept of constitutionally repugnant discrimination.
In its 1986 decision in Wygant v. Jackson Bd. of Educ., with Nixon and Reagan appointees now dominating the Court, a bare majority of the Justices invalidated a program that provided preferential protection against layoffs to Black employees. Those minority workers had been recently hired to remedy past discrimination in hiring. But this benign racial preference was viewed as unconstitutional discrimination against white employees. The Court made clear that protection of the white majority would be considered just as compelling as the protection of the racial minority--regardless of which group had suffered the historic discrimination that led to the Equal Protection Clause.
Within a short time thereafter, retirements from the Court gave Reagan the opportunity to fill vacancies with like-minded appointments. Especially notable were Reagan's elevation of William Rehnquist to replace the retired Chief Justice Warren Burger, and his appointment of Antonin Scalia to fill Rehnquist's former position. Like Reagan, these two appointees were mostly unsympathetic to the civil rights emphasis on protecting Black Americans.
Let's remember--as some have recalled to bring realism to the nostalgia over Ronald Reagan--that shortly after his election, he opposed extending the Voting Rights Act and sought to dilute its provisions until he was politically embarrassed to do otherwise. Remember also that he actually began his presidential campaign in Philadelphia, Mississippi where three civil rights workers had been murdered, and he used the occasion to exalt states' rights and to criticize the civil rights laws as an insult to the South. And just as revolting (in my humble view)--in a reversal of Nixon and Carter policy--Reagan supported federal support for "Christian" colleges and universities that openly practiced racial segregation. (The Supreme Court ruled against his position and upheld the Nixon-Carter policy in Bob Jones Univ. v. United States, 1983.)
Reagan's selections of Rehnquist and Scalia were fitting. Rehnquist, when a law clerk at the Supreme Court, wrote a memo in support of the "separate but equal" doctrine and in opposition to the ultimate decision in Brown v. Board of Education to end racial segregation. And while on the Court himself, he was the lone dissenting vote in the Bob Jones Univ. case to restore federal support for racially segregated colleges and universities.
As for Scalia, it is difficult, if not impossible, to find a single vote in which he supported civil rights for Blacks. Whether the cases before the Court involved prosecutors removing Blacks from juries, or universities trying to diversify racially to remedy past discrimination in admissions, or any other civil rights-related issue, Scalia consistently sided against the interests of Black Americans.
So, it was not at all surprising what the Court ruled, with Chief Justice Rehnquist and Justice Scalia in the majority, in its 1989 decision in City of Richmond v. J. A. Croson Co. As in Wygant, three years earlier, the Court invalidated another remedial racial preference program. Over the three liberal Justices in dissent, the majority held that the program to set aside 30% of the city's construction contracts to minority-owned businesses violated Equal Protection. The Court reinforced its Wygant decision that any racial classification--whether it discriminated against minorities or sought to redress that historic discrimination--was constitutionally suspect and nearly impossible to justify.
From there to the Court's rulings against affirmative action in school admissions was simply a natural progression. In 2003, in a pair of decisions--Gratz v. Bollinger and Grutter v. Bollinger--the Court severely limited the benign consideration of race in college and university admissions. By a vote of 6-3 in Gratz, the Court invalidated an admissions program where race seemed to be a dispositive factor. In the Court's words, nearly every “underrepresented minority” was admitted. And by a bare 5-4 vote in Grutter, the Court upheld an admissions program where race was a single factor among many in a very "individualized review" of each applicant. The four dissenters condemned the admission of--in the words of the major dissenting opinion by Chief Justice Rehnquist--"less qualified underrepresented minorities," whatever the purported purpose.
For the next several years, the Court seemed ready to end racial considerations in admissions policies entirely. It did so unqualifiedly in 2023 in SFFA v. Harvard and Univ. of North Carolina. The plaintiffs--felicitously self-named "Students for Fair Admissions"--did not seek fair admissions at all in the case, but only an end to any consideration of race. (Not athletes, not legacies, not donor families, etc., etc.) The 6-3 majority spoke through the opinion of Chief Justice John Roberts--who, by the way, was a law clerk for Rehnquist, and then worked in the Reagan administration DOJ, where he advocated against the Voting Rights Act. (Not surprisingly then, ten years before SFFA in the 2013 case of Shelby County v. Holder, he wrote for the 5-4 majority to invalidate a key section of the Voting Rights Act. The required federal "pre-clearance," before election laws could be changed in sections of the country that had historically practiced voting rights discrimination, was now, according to Roberts, unconstitutionally outdated.)
In SFFA, Roberts' argument for the majority against all racial preferences--whether to redress historic discrimination or to insure diversity of the student body--was the Constitution's supposed mandate for "color blindness." As Roberts explained it, "Eliminating racial discrimination means eliminating all of it...The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."
The three dissenters--liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--argued that race consciousness had actually advanced the Constitution's guarantee of equality. They also reminded the majority that the very purpose of the Equal Protection Clause was to protect the newly freed Black minority, not exactly color blindness.
Now, three years later, last week in Louisiana v. Callais, the very same majority and minority have made the very same arguments.
For the same majority: the consideration of race in creating voting districts violates Equal Protection, even for the benign purpose of remedying past discrimination. Preferring one race necessarily disfavors another. Discrimination can't mean one thing when it hurts Black voters, and something else when it disfavors whites. Elimination of racial discrimination means eliminating all of it.
For the same dissenters: race consciousness to create and preserve majority Black voting districts helps to insure the Constitution's guarantee of equality in voting. That guarantee, foremost, was the protection of the historically discriminated against Black minority. Prohibiting any consideration of race in redistricting hinders, not bolsters, constitutional equality.
The fact is, regardless of how devastating and distressing this most recent voting rights decision might be to those who actually support the voting rights laws--again, me included--it's no surprise at all. Anyone who has followed the direction of the Court for the past few decades could have predicted the majority and dissenting opinions. Even written them.
Louisiana v. Callais was the preordained consequence of the relentless whittling away of the civil rights era. If the commitment of that era was to eliminate, as much as possible, the remnants of this country's savage mistreatment of Black persons, the commitment now is to treat race as though the remnants of that savage mistreatment are now all gone. There are consequences of a 6-3 politically conservative Republican majority. And there are consequences of that growing body of decisions that has been pointing one way for at least 40 years.
We will now witness the aftermath of Louisiana v. Callais. Like the decision itself, the aftermath shouldn't be a surprise.
