The Supreme Court’s three liberal justices — a Latina woman, a white woman and a black woman — urged in their voting rights arguments Tuesday to wrest the narrative of a color-blind America from the conservatives who now dominate the bench.
Led by Chief Justice John Roberts, the right-wing justices have rejected racially sensitive policies, including redistricting meant to increase the chances of racial minorities electing candidates.
“It’s a terrible business that divides us along racial lines,” Roberts wrote in a 2006 case.
Liberals, facing the controversy in Alabama on Tuesday, tried to refocus the court on the foundations of the Voting Rights Act of 1965. Their strong, if defensive, positions could foreshadow arguments over racial affirmative action in higher education later this month.
The lawyers who developed the lawsuits against Harvard and the University of North Carolina said the court, which restricts voting rights, is also willing to reverse precedent to take into account the schools’ race for student diversity on campus.
Tuesday’s case focused on a portion of the landmark VRA, known as Section 2, that prohibits election practices that deny a person the right to vote based on 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 the black vote in violation of Article 2. The court said it was possible to create a second black majority under the traditional. redistricting criteria linked to population size and geographic density.
But the Supreme Court blocked the lower court’s decision earlier this year, hearing the state’s case on Tuesday.
Justice Elena Kagan jumped in first to criticize Alabama’s effort to curtail Article 2 protections, calling the Voting Rights Act “one of the great achievements of American democracy, to ensure that African Americans, regardless of race, can have equal political opportunities. They can have as much political power as white Americans have ever had.” That’s a pretty big deal.”
Justice Ketanji Brown Jackson, the court’s newest member and its first black woman, argued against Alabama officials’ insistence on “race neutrality,” saying the Constitution’s framers adopted the Fourteenth Amendment’s guarantee of equal protection “in a race-conscious manner.”
“In fact, the people who were discriminated against, the free people of the Reconstruction period, were trying to be equal to everyone else in society. … That’s not a race-neutral or race-blind idea in terms of the remedy,” he said.
Justice Sonia Sotomayor, the court’s first Hispanic justice, insisted that Section 2 was intended to ensure that “certain racial minorities … may participate equally.”
As a group, the Supreme Court’s conservatives largely held fire. Judge Neil Gorsuch did not ask a single question. Justice Clarence Thomas asked two modest questions of Alabama Attorney General Edmund LaCour and no questions of the lawyers challenging the Alabama plan, Deuel Ross and Abha Khanna, or US Attorney Elizabeth Prelogar, also asking the justices to affirm the lower court.
Thomas, who is Black, has argued that racial remedies violate the Fourteenth Amendment’s guarantee of equal protection and, in practice, stigmatize the groups they seek to benefit from.
He has joined Roberts in rulings to narrow the reach of the Voting Rights Act, most notably in 2013, when the court struck down so-called Section 5, which required states with a history of discrimination to seek federal approval before changing their election practices.
Shelby County v. In Holder’s opinion, Roberts wrote, “Our country has changed, and while racial discrimination in voting is overstated, Congress must ensure that the legislation it passes to address this problem speaks to today’s conditions.”
Roberts’ broader point of view, as he stated in a 2007 case rejecting school integration plans: “The way to stop discrimination based on race is to stop discrimination based on race.”
In Tuesday’s case, Roberts declined to put his hand on the details of Alabama’s map, though his record suggests a sympathy with the state’s position that just because a majority-minority district can be drawn doesn’t mean it should be. State officials say a second black majority would require racial considerations that conflict with the Fourteenth Amendment and the Voting Rights Act.
Jackson resisted the idea. “I don’t see that Congress is requiring race neutrality,” he said, noting that the law was intended to ensure that “one particular class of citizens” is not “less privileged” than another. “So it looks like Congress is allowing race to be taken into account,” he said.
Kagan recalled Shelby County v. In Holder’s decision, which struck down Section 5’s “preclearance” rule for states with a history of racial bias, the court’s majority held that Section 2 would be available to remedy ongoing discrimination.
But, Kagan noted, a 2021 decision in an Arizona case took a step toward narrowing Section 2’s coverage of potentially discriminatory voting practices.
“And now here we are,” he said, as debate over claims to dilute Alabama’s voter redistricting was setting the court up for another strike on the Voting Rights Act, “to dramatically reduce our 40-year record. This is also very difficult to overcome.”
He asked, “So what’s left?”