Two things were obvious after Tuesday morning’s oral arguments in Merrill v. Milligan, one of the term’s most important voting rights cases: One is that there will be three female justices on the losing side of virtually every single important case for the foreseeable future. And two—they are not going down quietly. All three of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson brought the full force of history, text, original intent, and statutory purpose to the table during arguments about the enforcement of the Voting Rights Act—values the court’s conservatives purport to espouse. In so doing, they highlighted that the state of Alabama, aided and abetted by the court’s so-called textualists and originalists, is engaged in a radical project to engineer a new era of “race blindness” in voting that violates both the Constitution and the Voting Rights Act. That these oral arguments are now broadcast live means that Americans could listen to three women, one of whom is Black, one of whom is Latina, and one of whom is Jewish, administer nothing short of a beatdown to both Alabama’s solicitor general, Edmund LaCour, and their own colleagues on the bench.
Merrill is a challenge to an Alabama gerrymander that packed most of the state’s Black voters into a single district and spreads the remainder throughout white districts where they would not be able to elect their preferred candidate, a trick known as “packing and cracking.” As a result, Black voters control just one of seven congressional districts despite making up nearly a third of the population. The Supreme Court has previously held that such race-based vote dilution is impermissible under both Section 2 of the VRA and the 14th Amendment, so the case should have been straightforward. When faced with this lawsuit, however, Alabama turned those ideas on their heads by insisting that any maps that take any race into account violate the Constitution. In other words, redressing illegal racial discrimination is, itself, illegal race discrimination. This is a parody of an argument about the need for race-blindness, but it’s an idea that is ascendant this term, here and in the upcoming affirmative action and Indian Child Welfare Act cases.
The problem with this strategy, as Kagan immediately pointed out, is that when the Supreme Court took away Section 5 of the Voting Rights Act in Shelby County, it promised that Section 2 would be available to remediate racialized voting measures. When the Supreme Court chipped away at Section 2 of the VRA in Brnovich v. DNC, it glibly promised the law would still be available in cases where states diluted the power of racial minorities’ votes. But now the court has a vote dilution case in Merrill, and that promise has proved hollow; instead, the court is preparing to take away the use of Section 2—and with it, the VRA—altogether. What’s left, Kagan asked, after that?
Kagan also said that under existing precedents, Alabama could only prevail if the court ignored or overruled existing law. Of course, ignoring and overruling existing law is the raison d’être for the new conservative supermajority, for which precedent is a mere annoyance on the way to its final destination.
Up next was Jackson, who cogently explained that the Alabama legislature’s claim in Merrill is itself rooted in a lie. The 14th Amendment and the Voting Rights Act both explicitly provide for race-conscious measures to remediate historic efforts to suppress Black voters. It is not a race-blind project and it never was; it wasn’t even intended to be. It is race conscious on its own terms, and Jackson read from the contemporaneous reports at the drafting to make that very point:
To have a Black woman read the clear text and purpose of the 14th Amendment and the Civil Rights Act of 1866 to a white man who claims disingenuously that it is racism to try to remediate racism is a simply extraordinary moment in constitutional history. Jackson cannot prevent her colleagues from using bogus history to assail equal rights for racial minorities. But she can highlight the absurdity of their anti-originalist convictions in a manner that’s perfectly legible to the public.
After Jackson and Kagan refuted LaCour’s legal theories, it fell to Justice Sotomayor to lay out the factual frailty of Alabama’s arguments. When the solicitor general asserted that the state just so happened to divide up communities in what’s known as the state’s Black Belt, Sotomayor asked why it mysteriously kept white areas intact. “Just so happens that all of those people are white,” Sotomayor told LaCour. “And you’ve never split those communities.” Meanwhile, “through the decades,” the Black community “has been split three or four ways. Now the question is, why?” Alabama claimed it was perfectly acceptable to divvy up the Black Belt if it wasn’t considering residents’ race. But as Sotomayor noted, “indifference to racial inequality is exactly what Section 2 is barring or prohibiting.” Whatever the state’s purported reason for diluting votes in the Black Belt, its actions cannot be squared with the VRA.
The conservative justices pushed back, naturally. Throughout the day, they urged LaCour to focus on his least radical arguments, preemptively seeking to make their decision seem reasonable. Yet in a sense, this debate was largely academic. Merrill was already decided temporarily at the high court, on the shadow docket, last February when the justices ruled 5-4 that Alabama could use its preferred map in the midterms, with Roberts joining the court’s three liberals in dissent.
But Roberts’ vote last year was merely a protest against his colleagues’ abuse of the shadow docket. On Tuesday, he sounded much more favorable to Alabama’s claims. The chief justice has, after all, dedicated the bulk of his judicial career to an ahistorical, fact-free, and fatuous claim that racism is over in America, and that the best way for everyone to “get past” racism is to imagine it away. “The way to stop discrimination on the basis of race,” he infamously wrote, in a case about efforts to desegregate schools, “is to stop discriminating on the basis of race.” As a consequence, the court’s conservative justices keep performing the sad spectacle of defending structural, generational, pervasive racism in Alabama.
Nothing about this looks like colorblindness, or like post-racial America, or like neutral, colorblind, computer-generated maps. It looks like the vestiges of white supremacy, elevated to a lofty principle of “colorblindness” that itself smacks of white supremacy, as three women, two of whom are women of color, call it precisely that. In the midst of a raucous national referendum on the continued legitimacy of the court, perhaps the most important development is that the justices are letting us listen in to these conversations, in real time. The three liberal justices surely already know they will be dissenting for the foreseeable future. They’re focusing on using their voices. We should listen.
