Judicial Supremacy Has Arrived

The Voting Rights Act of 1965 did not die all at once, or by one means. It died through attrition: a Congress that was too sclerotic and polarized to defend one of its finest accomplishments, lawyers and academics who tolerated retreats on civil rights, a society that lapsed into the comfortable illusion that it had accomplished the work of the civil-rights movement. And it died through action: a series of blows from conservative justices ideologically hostile to the law’s aims.

Last week’s decision in Callais v. Louisiana is the most devastating of those blows. The consequences are grave enough on their own terms. Callais will foreclose nearly all federal voting-rights claims aimed at ensuring minority political participation through fair districting. Over successive redistricting cycles, it is poised to collapse Black representation across the South in ways not seen since the end of Reconstruction.

But to view Callais as merely the final hit in the Voting Rights Act’s destruction is to miss its deeper ambition. The bigger shift is that Callais also closes off the possibility that a future Congress could respond with new legislation combating racial discrimination in the electoral system. Justice Samuel Alito’s majority opinion, joined by the other Republican appointees, rests on an interpretation of the Fifteenth Amendment that effectively bars Congress from remedying the very inequities Callais unleashes—inequities the amendment itself was designed to eradicate and prevent.

Seen in this light, Callais is not merely an assault on a landmark statute, or just another step in the Court’s and America’s retreat from the multiracial democracy envisioned by the Constitution’s Reconstruction amendments. It is something more ambitious and insidious—a consolidation of judicial supremacy, achieved by turning those amendments against the congressional authority they were meant to confer. The decision does not only dismantle a statute; it hollows out Congress’s capacity to respond to the country’s needs.

The 1965 Voting Rights Act came apart in two stages before Callais. First, in 2013, five Republican-appointed justices invalidated the law’s requirement that jurisdictions with histories of voter discrimination obtain Department of Justice approval before changing voting laws. Second, in 2021, six Republican-appointed justices invented a new legal standard to make challenging burdensome voting rules in federal court nearly impossible.

Both decisions were legally dubious and practically consequential, but at least they left open an escape valve. Lawmakers could pass new legislation to revise the preclearance formula gutted in Shelby County v. Holder or clarify the Section 2 standard distorted in Brnovich v. Democratic National Committee. The John Lewis Voting Rights Advancement Act of 2021 attempted exactly that. Directly responding to Shelby County and Brnovich, it passed in the House and stalled in the Senate during the Biden presidency.

[Marc Novicoff: The House of Representatives is turning into the Electoral College]

Its failure came from absence of political will among Republican lawmakers, save for Senator Lisa Murkowski, and from the contorted institutional design of Congress via the filibuster, not lack of constitutional authority. At that earlier time, there was no question that Congress had the authority to counter the Court’s deconstruction with a statutory corrective. Post-Callais, it no longer does.

On its surface, Callais resembles its two predecessors. It is primarily a statutory holding, not an overt constitutional one, undoubtedly a setback for voting rights but ultimately something that could appear fixable by a sufficiently robust John Lewis Act 2.0. But Alito’s reasoning embeds constitutional limits that preempt legislative remedy. Were Congress to pass a reform aimed at reversing Callais, Alito and his Republican-appointed colleagues would almost certainly deem it unconstitutional. The reason lies in the opinion’s embrace of what Alito calls “the limited authority that the Fifteenth Amendment confers” on Congress.

This framing is startling. The Fifteenth Amendment confers exceptionally broad authority on Congress. It declares, “The right of citizens of the United States to vote shall not be denied or abridged” based on “race.” It continues, with equal clarity, “The Congress shall have power to enforce this article by appropriate legislation.” Adopted in the aftermath of the Civil War, its expansive, affirmative, and flexible provisions were designed to secure equal political citizenship for formerly enslaved people.

Alito’s analytical move in Callais is to invert the Fifteenth Amendment, recasting it as a restraint on “appropriate legislation.” He contends that Section 2 of the Voting Rights Act must be tightly tethered to what he sees as the Fifteenth Amendment’s bar on intentional discrimination. Liability under the Voting Rights Act, he suggests, should arise only where evidence strongly implies that states had a discriminatory purpose in diluting racial minorities’ political power.

Formally, Callais stops short of requiring proof of discriminatory intent in redistricting. Practically, that distinction is meaningless; Alito reads the Fifteenth Amendment so narrowly that only the most explicit evidence of racial discrimination could ever satisfy it. As every civil-rights lawyer knows, proving discriminatory purpose is extraordinarily difficult, in many cases impossible, especially under the evidentiary frameworks championed by the Court’s conservatives.

More crucial, Congress has never embraced Alito’s narrow view of what counts as discrimination. It codified the opposite. Congress—in the Voting Rights Act, its reauthorizations, and a crucial 1982 amendment—repeatedly and unequivocally rejected the notion that vote-dilution claims must rest on provable intentional discrimination. Instead, Congress legislated explicitly on the premise that electoral systems can be invidious in their effects even absent provable malice.

Imagine that a 2028 sweep returns Democrats to unified control of Congress and the White House. They might attempt to restore the pre-Callais framework by reviving what are known as the Gingles factors, a test derived from a 1986 case that governed districting claims to safeguard the right of “cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice.” Such a statute would likely have survived ordinary court review. But Alito’s reasoning would all but invite its invalidation. By allowing consideration of the effects of redistricting on Black voters, the resurrected Gingles factors—designed to give the Fifteenth Amendment teeth—would now run headfirst into a Fifteenth Amendment problem.

There’s another way that Callais will work to prevent future legislative remedies—this one political, not legal.

Shelby County and Brnovich were damaging, but their effects on representation are more marginal—affecting voters’ ability to participate, but at levels that could still have been overcome electorally, at least in most races. Callais is different in kind. In the near term, majority-minority districts across the South will evaporate. Over successive redistricting cycles, the result will likely be the most significant contraction of Black congressional representation since the end of Reconstruction, potentially the most precipitous fall in American history, a contraction that would have seemed, not long ago, unthinkable.

A redistricting regime that replaces Black Democrats with white Republicans alters the composition of the Congress that would need to act. The decision thus creates a self-reinforcing loop, weakening the representational coalition most committed to racial minorities’ voting rights while eroding the moral authority, political capacity, and agenda-setting power necessary for restoration.

[Vann R. Newkirk II: For a time, the U.S. protected democracy]

Among the casualties will likely be Terri Sewell of Alabama, Congress’s lead sponsor of the John Lewis Act, whose district Republicans have vowed to eliminate in the wake of Callais. Louisiana’s Troy Carter and Cleo Fields, whose seats emerged from the litigation at issue and who have become eloquent advocates for voting rights, face the same prospect. These lawmakers, among other Black Democrats from the South, are closest to the indignities of racism in American electoral politics, and they bring the full moral weight of the civil-rights tradition to bear in demanding something better.

The decision’s ambition extends further still. Callais does not merely allow the removal of the federal legislators most likely to fight for reform; it gives state lawmakers a road map to entrench vote dilution. In passages that read more like a practitioner’s guide to race dilution than a judge’s constitutional reasoning, Alito instructs lawmakers on precisely how to immunize discriminatory maps from review: Call them partisan gerrymanders. Partisan motivation, Alito affirms, is safe from scrutiny. “Courts must treat partisan advantage like any other race-neutral aim,” he writes. The message to Republican legislatures, in an opinion joined by every Republican appointee on the Court, is unambiguous: Eliminate Black districts while saying you’re doing it for Republican partisan advantage.

For any legislator inclined toward reform, the opinion is equally clarifying. Even a superficially race-neutral remedy, such as proportional representation, would confront a Court primed to strike it down if it threatened conservative political power. In her Callais dissent, Justice Elena Kagan, quoting Justice Ruth Bader Ginsburg’s dissent in Shelby County, argued that the Voting Rights Act was “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” If this statute—so textually grounded, so morally urgent, so explicitly authorized by the amendment it enforces, so significant in results—is not safe from wholescale judicial desecration, nothing is.

Alito’s treatment of the Fifteenth Amendment ultimately will strip Congress of its authority to articulate its own constitutional vision—and will force upon it a tamed, Court-approved understanding of its own powers.

To deny Congress meaningful enforcement authority is to deny it any substantive role in shaping constitutional meaning. This project emerged from City of Boerne v. Flores, a 1997 decision in which the Court’s conservatives held that Congress possesses “the power to enforce, not the power to determine what constitutes a constitutional violation.” Callais smuggles that principle into the tatters of the Voting Rights Act. Traces of it pervade Shelby County and Brnovich, but Callais invokes Boerne for authority and is accordingly more transparent in its embrace of supremacy as such. In so doing, it dismantles a long-standing constitutional settlement in which Congress and the Court jointly elaborated the meaning of foundational guarantees.

On one level, Callais is about the mechanics of representational democracy: about whether people have a voice in government, whether legislators respond to them, whether citizens recognize themselves in those who govern.

But Callais reaches something deeper, about constitutional democracy itself: about whether the Constitution, the law of laws, means what elected branches say it means, and whether those elected branches can act on that meaning. The Court has declared that the branch of government most accountable to the people cannot legislate its way toward a more inclusive democracy.

At the same time, the Court—the branch of government least accountable to the people—has claimed for itself the sole authority to say what the words of the Constitution mean. And it wields that power to entrench discrimination and wall off the paths by which a democratic society might redeem its most aspirational promises.