With so many things happening everywhere all at once, the start of a new supreme court term on 6 October may be flying under the radar. It shouldn’t.
The state of checks and balances in the country is among the more ominous indicators of the health of America’s democracy: in the executive branch is a president who is keen on exercising every lever of power that he has – as well as some he does not – to enrich himself and his allies and to suppress dissent and political opposition. The legislature is dominated by a regime-friendly political party that is too happy to roll over and accede to the president’s wishes, repeatedly failing to exercise the congressional powers that could rein in the executive branch.
Because the executive and legislature branches seem to have jumped the constitutional shark, some people continue to hold out hope that the judicial branch, with the supreme court at its apex, will offer a way out of this mess. That would be a mistake: like Congress, the Republican majority on the supreme court has lined up behind most of the president’s sweeping assertions of novel powers. The supreme court has blocked lower federal court rulings that had reined in the president’s authority to withhold federal medical research grants for ideological reasons. It has allowed the executive branch to deploy roving immigration patrols to engage in racial profiling; to expel noncitizens to countries on the brink of civil wars where they could face torture, trafficking or death; to fire non-regime friendly officials (in violation of federal law); to dismantle entire departments and more.
But one specific case on the court’s docket for this term illustrates its role in a more far-reaching rightwing project that goes back all the way to the end of the civil war.
Louisiana v Callais is a major challenge to what remains of the Voting Rights of Act of 1965, and could radically rework the structure of political representation in the United States. A successful challenge to the VRA would allow the Republican party to further cheat democracy by engaging in even more partisan gerrymandering and erasing several legislative districts held by Democratic officials, many of whom are racial minorities.
Callais arises out of the 2020 redistricting process, when Louisiana, like other states, drew new congressional maps. The resulting maps gave Black voters fewer opportunities to elect the candidates of their choice than white voters, significantly diluting their voting power.
Louisiana has six congressional representatives in a state that is about one-third Black, but drew maps that allowed Black voters to select only one-sixth of the state’s representatives. Lower courts concluded the maps violated section two of the VRA. Passed during the civil rights movement to address a long history of disenfranchisement, the VRA prohibits voting policies that have the effect of disadvantaging Black voters, including in electoral representation. In response to these judicial decisions, the Louisiana legislature took another crack at maps that accomplished its partisan objectives – such as preserving Republican speaker of the house Mike Johnson’s seat – while also affording Black voters political opportunities. A group of white voters challenged those maps as unconstitutional racial discrimination. Their theory was that the legislature, by trying to ensure both Black voters and white voters were represented, had somehow discriminated against white voters.
The case is even bigger than a fight about the future of the VRA; it is also bigger than the Republican party’s decades-long campaign against the VRA. The case is part of a broad effort to not only reinterpret the Reconstruction amendments – the constitutional amendments passed after the civil war to ensure equal rights and due process – but also to weaponize them against democracy and civil rights. That conflict is being waged in both the supreme court and the White House, and its roots go back more than a century to the aftermath of the civil war.
The big picture helps to underscore what is at stake: the future of the United States as a multiracial democracy.
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The story of Louisiana v Callais begins with the project of Reconstruction, the effort to reconstitute the United States after the civil war and the end of slavery. Reconstruction was an ambitious undertaking that sought to integrate Black Americans into the polity and to protect their rights against the states and political movements that already wanted to claw them back on the heels of the civil war.
Part of this era entailed the passage and ratification of the Reconstruction amendments – the 13th, 14th and 15th amendments that outlawed slavery, guaranteed equal protection, and prohibited racial discrimination in voting, among other things. The people who drafted the 15th amendment saw the measure as a way to allow Black voters “to choose from among his fellow citizens the man who suits him for his representative”, as senator John F Edmunds put it in 1869. As Justice Ketanji Brown Jackson detailed in an oral argument a few years ago, a report submitted by a congressional committee on Reconstruction said “that the entire point” of the project was to secure rights of formerly enslaved people. “The legislature who introduced [the 14th] amendment said: ‘Unless the constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen,’” Jackson said.
Reconstruction was an ambitious project that produced real gains. Within a few years, former Confederate states sent Black representatives and senators to Congress and elected Black leaders to state political offices. The federal military conducted voter registration drives in the south; through Freedmen’s Bureau offices, the federal government helped set up thousands of schools that educated hundreds of thousands of children who had been enslaved.
In part because of these successes, Reconstruction encountered resistance that became violent. That included the rise of the Ku Klux Klan, which enforced racial hierarchy through a campaign of terror.
The many varied opponents of Reconstruction channeled several talking points. One was the idea that the very project of Reconstruction was too radical and had to be limited so as to preserve a pre-existing constitutional order of white supremacy that Reconstruction had sought to remake. The anti-Reconstruction movement scored important victories with supreme court decisions from the late 1800s that narrowly interpreted provisions in the 14th amendment and weakened the federal government’s oversight of states’ regulation of elections.
Another anti-Reconstruction trope was the notion that federal civil rights protections were no longer needed since slavery was a thing of the past. And, this line of argument continued, because federal protections for Black freedmen were unnecessary, retaining the protections was actually unfair to the people who were prohibited from disenfranchising or discriminating against them. Along these lines, when Andrew Johnson vetoed a congressional statute, he insisted that since slavery had been “abrogated”, federal protections for freedmen therefore “operated in favor of the colored and against the white race”. When the supreme court invalidated the Reconstruction-era Civil Rights Act in 1883, it, too, insisted that the time for federal civil rights protections for freedmen was up, since “there must be some stage in the progress of [freedmen’s] elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.” (This was less than two decades after the end of the civil war.)
In short, opponents of Reconstruction tried to weaponize the principles of Reconstruction against it. Southern sympathizers maintained that prohibiting former Confederate states and Confederates from discriminating against Black Americans was itself a kind of discrimination – discrimination against the Confederate states and would-be discriminators.
This logic has endured: decades later, white business owners even challenged the 1964 Civil Rights Act, which prohibits businesses from engaging in racial discrimination, as a violation of the 13th amendment, which prohibits slavery and involuntary servitude.
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Civil rights organizers and leaders continued to press forward the vision that Reconstruction offered. The 1965 Voting Rights Act was a milestone in their efforts. The VRA had two main elements: section two, prohibited voting discrimination on a nationwide basis. The other, section five, required certain jurisdictions with especially bad histories of voting discrimination to get federal permission before changing their voting laws or policies. The latter system was known as preclearance.
The VRA had barely become law before the modern Republican party decided to attack the statute and to specifically use the federal courts to do so. President Richard Nixon opposed renewing the preclearance process; members of his administration referred to it as “punitive” legislation – arguing, essentially, that it was unfair to, and discriminated against, the former Confederate states. Nixon reportedly promised to appoint supreme court justices who would not make the south a “whipping boy” (of all things) on civil rights; to the supreme court, he appointed a southerner, Lewis Powell, who would later warn that expansive interpretations of the VRA would turn American “cities into jungles”. Nixon also appointed William Rehnquist, who was accused of challenging Black and Latino men’s voting credentials during elections. (Rehnquist denied doing so).
Later Republican administrations continued the fight against the VRA. Ronald Reagan also opposed renewing the law, referring to it as “vindictive, selective” and “humilitary [sic]” to the poor former Confederacy. His assistant attorney general called the VRA’s protections against voting discrimination a kind of “government-imposed discrimination”. (Again the same refrain: anti-discrimination is the new discrimination.) His administration produced a legal document warning that expansive interpretations of the Reconstruction amendments, which allowed Congress to adopt expansive civil rights protections, had “extreme consequences” and must be rejected. The Reagan administration hired a young Samuel Alito after he professed interest in apportionment, or how legislatures draw districts. The administration also hired a young John Roberts who helped the administration’s (unsuccessful) effort to oppose renewing and expanding the VRA. Both men are now poised to decide whether section two of the VRA can limit how states apportion representation.
This effort – to weaponize the principles of equality against it – would return with Bush v Gore, the case that halted Florida’s efforts to accurately count the votes in the 2000 presidential election and, in the process, handed the presidency to George W Bush. Bush’s litigation team argued that manually recounting votes in the jurisdictions affected by lingering uncertainty resulting from machine tabulation was a denial of equal protection. Their argument was that manually recounting ballots only in those areas affected by tabulation uncertainties was unequal – in other words: “equal” protection required potentially disenfranchising voters in the affected areas, which had comparatively large groups of minority voters. The lawyers who pressed this theory included Roberts, Amy Barrett and Brett Kavanaugh, all of whom now sit on the supreme court.
The Trump administration has picked up these ideas and pushed them to further extremes. In an array of executive orders and guidance letters, the administration has insisted that civil rights laws actually prohibit measures that are designed to achieve equality. It has invoked federal civil rights laws that prohibit discrimination to insist that schools must discriminate against certain speech. It has decided that federal anti-discrimination law bars efforts designed to achieve diverse schools and businesses. It has argued that federal anti-discrimination measures actually require some discrimination against some disfavored groups.
The Roberts court has channeled these same ideas into its decisions. It was unfair and unequal to “punish” the south, Roberts wrote for the Republican justices who invalidated the preclearance process in 2013. That system was too extreme in giving the federal government that kind of control over elections, he added.
True equality, the Roberts court has ruled, actually requires a prohibition on schools trying to achieve diverse student bodies by considering applicants’ race. The time for schools’ race-conscious measures designed to achieve racial diversity and representation is over, according to this court.
So too is the time for protecting the rights of minority voters, the court said when it invalidated the VRA’s preclearance system in 2013. Preclearance was no longer necessary, the court said, because section two’s nationwide ban on voting discrimination could do all the work.
But the court has decided to consider whether section two’s time is up as well. In 2023, Kavanaugh openly stated that Congress’s authority to “authorize race-based redistricting … cannot extend indefinitely into the future”. He was referring to the VRA’s requirement that legislatures ensure Black voters are represented, not to legislatures’ frequent practice of ensuring (only) white voters are represented. The latter is apparently neutral and fine, whereas the former is seen as suspect. No wonder Justice Elena Kagan remarked in an oral argument that “in recent years”, the VRA “has fared not well in this court”.
Which brings us to Louisiana v Callais. Multiple courts relied on section two of the VRA to strike down a set of legislative maps that did not afford Black voters with equal rights or equal opportunities as white voters. That set off a redistricting process where the Louisiana legislature had to ensure the state’s maps provided Black voters with political representation.
Now the supreme court is being asked to find section two illegal – to say that considering political equality is a kind of discrimination. The argument is that prohibiting legislatures from discriminating against Black voters, by denying them political opportunities, actually discriminates against white voters.
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Callais is emblematic of several themes that have defined the work of the Roberts court to date and that the court will expand upon still. Front and center is the notion of conservative grievance – the idea that Republican constituencies are the real victims of subordination today, their power diminished by pluralism, modernity, civil rights, democracy, you name it. Conservative grievance imagines that there is no discrimination except for discrimination against white, Christian conservatives and the super rich. That’s not reality, as there is no evidence of widespread discrimination against white people.
The conservative grievance mindset insists that the constitution and civil rights laws protect social and religious conservatives’ prejudices. The idea is that if you squint hard enough, it turns out that civil rights protections actually prohibit measures that are designed to secure civil rights.
The court has played a pivotal role in the rightwing project translating these grievances into a redesign of American law and politics. In cases on racial discrimination, the court has insisted that measures prohibiting racial discrimination actually discriminate against white people. In cases on LGBTQ+ equality, the court has insisted that measures prohibiting discrimination against gay, lesbian and bisexual people actually discriminate against religious and social conservatives who are opposed to LGBTQ+ equality. In addition to Callais, another case on the court’s docket for this term invites more of this thinking: that case asks whether it is unconstitutional to prohibit conversion practices that seek to counsel people out of being gay, lesbian, bisexual or transgender – a form of “therapy” a UN expert has said can amount to torture. The court will also consider whether federal civil rights protections against sex discrimination permit – or even require – discrimination on the basis of gender identity, against trans student athletes.
The reality of the court’s shadow docket – the set of orders and decisions the court issues without full briefing, oral argument, advance notice and often on an emergency basis – is that we do not know which other matters will make their way up to the court over the next year. The shadow docket is one of the primary vehicles the court has used to weigh in on much of the litigation concerning the Trump administration – and specifically to block lower court rulings and greenlight many of the administration’s claims of new, sweeping presidential authority.
In the last three months alone, the shadow docket is where the court allowed the administration to continue to withhold almost $800m in medical research grants; to fire officials in violation of federal law; to take steps to dismantle the Department of Education; to have roving immigration patrols engage in racial profiling and more. In one of the many cases where the court’s Republican appointees voted in favor of the Trump administration on the shadow docket, Justice Jackson wrote what the supreme court is doing is “Calvinball but with a twist”. In Calvinball, the fictional game played in the Calvin and Hobbes comics, there are no rules. Here, there is one rule – “this administration always wins”, Jackson quipped.
But the supreme court’s governing rule may be a little broader and even more terrifying than that. The Republican justices seem to think that not only are Republicans entitled to power, they are also entitled to use that power to do whatever they want. That is why the court treats it as an emergency when a lower federal court blocks a Trump administration policy.
That is also why the court seems to look at the VRA’s prohibitions on racial discrimination as illegitimate. This is also another iteration of the Republican justices’ refrain that the constitution is colorblind – that it does not permit officials to take race into account for any reason.
The theory is a work of historical fiction: as Jackson illustrated by pointedly quoting from Congress’s report on Reconstruction, Reconstructionist lawmakers argued that the Reconstruction amendments authorized measures that would benefit Black Americans, rectify discrimination against them, and prevent future discrimination as well. Moreover, the “colorblind” theory has been somewhat less than colorblind in practice. In the context of the VRA case, for example, “colorblind” constitutionalism would permit legislatures to redistrict in ways that result in white voters being overrepresented, but would prohibit laws from requiring legislatures to ensure that Black voters are represented as well. That is not being colorblind; it is racial hierarchy. In the recent past, “colorblind” constitutionalism has led the court to say that colleges considering race as one factor in an applicant’s file to ensure colleges are diverse is unconstitutional, but immigration officers considering race as one factor in who to detain and deport is perfectly legal.
So-called colorblind constitutionalism has always been a tool to reinforce Republicans’ power. A century ago, it was a way of resurrecting the Confederacy and dismantling Reconstruction. Soon it could pave the way for the end of the law that made the United States a multiracial democracy.
Leah Litman is a professor of law at the University of Michigan and co-host of the Strict Scrutiny podcast. She is also the author of the recent New York Times bestseller Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
