The Supreme Court Is Poised to Strike Down Race-Based Redistricting

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As readers of this magazine are well aware, for decades American society has been roiled by what we are slowly coming to see as the Supreme Court’s unwarranted judicial audacity—if not impudence, arrogance, and illegitimacy. Since Richard Nixon’s campaign in 1968, Republicans have been seeking to correct what they regard as the unwarranted aggrandizement of federal court intrusion into the prerogatives of state and local governments. Only as a result of Donald Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are we witnessing what may be a successful attempt to correct this glaring judicial error.

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The Supreme Court has recently begun to take tentative steps toward altering this strand of Warren Court jurisprudence as well, perhaps recognizing the obvious understanding of the Framers that this was another area where the states were given discretion. The Court has, for example, forbidden the firing of a high school football coach for praying after games, and has looked with sympathy on religious-based objections to government-mandated health plans that compel funding abortion.

With the recent oral argument in the current term, Louisiana v. Callais, we were able to witness the justices tackle the third, and probably the most difficult of the intractable constitutional issues: race. In one of the most famous dissents in Supreme Court History, Plessy v. Ferguson (1896), a case which upheld a Louisiana state law mandating “separate but equal” accommodations in public transportation, Justice John Marshall Harlan famously declared,

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An increasing number of constitutional observers, including Justice Thomas, believe that Harlan got it right. That means several of the Court’s decisions permitting “affirmative action”—that is, allowing racial discrimination in favor of previously disadvantaged races—were in error.

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Previous Supreme Court cases have made clear that such a race-based redistricting remedy was permissible to correct clearly proven race-based discrimination on the part of malevolent state officials. But the question before the Court in Callais is whether racially based redistricting is lawful when there has been no proof of invidious discrimination, even though there was a situation of mathematical inequality in racial representation.

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The situation in the Louisiana case currently before the Court is that, while black voters make up approximately one-third of the Louisiana electorate, and there are six congressional districts in the state, there is only one black representative. Does that mean there has been a constitutional violation there, one that calls for the creation of two majority-minority districts, which would all but guarantee the election of two African-American representatives?

That, essentially, is what the NAACP’s lawyers argued in the Callais case. Their assumption, of course, is that African-Americans are likely to vote for an African-American representative and that engineering a second minority-majority district is somehow democratic.

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Callais offers the Court once again the opportunity to reject racial stereotyping by rejecting racial redistricting and declaring clearly that such a practice violates the 14th and 15th Amendments.

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