Abortion, religion, and race were the three intractable constitutional law conundrums of the second half of the 20th century. Back in the 1960s and ’70s, the justices of the Warren and Burger Supreme Courts felt compelled to step in and resolve them, though their constitutional warrant so to do was anything but clear.
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.
The most prominent example of long-overdue constitutional correction is undoubtedly the overruling of Roe v. Wade (1973). This audacious Burger Court decision somehow found an unenumerated implicit constitutional right to terminate a pregnancy before fetal viability. In Dobbs v. Jackson Women’s Health Organization (2022), five of the Justices (Gorsuch, Kavanaugh, Barrett, Samuel Alito, and Clarence Thomas) joined in an opinion that remarkably and candidly declared Roe was in clear error, and that, indeed, there simply was no such implicit right. Accordingly, the Court returned the question of the legality of abortion to the states, where, by the Constitution’s 10th Amendment, it had actually always belonged.
In the 19th century and well into the 20th, it was not unusual to encounter statements that ours was a Christian country, and several of our Framers, and one of our earliest great Supreme Court justices, Joseph Story, believed that Christianity was not only a part of our common law, but that it was the positive duty of all states and even the federal government to promote it. John Adams famously remarked that our Constitution was made only for a religious people. This attitude endorsing the presence of religion in general and Christianity in particular in the public square all but vanished in the 1960s, as the Supreme Court rendered a series of decisions demanding both that states and the federal government stay “neutral” on religion, neither encouraging or discouraging it, even though the Constitution, in the First Amendment, expressly guaranteed the free exercise of religion.
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. Calais, 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,
There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
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. Even Chief Justice Roberts, the justice most leery of plunging the Court into the political thicket, has dared to condemn the practice of racial discrimination of any kind, and, in a 2007 case, he sensibly remarked, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
In the Court’s important 2023 case involving college admissions to Harvard and the University of North Carolina, the Court finally ruled, after decades of uncertainty, that it was wrong to favor particular racial groups to achieve “diversity” in college student bodies. It is coming to be understood as well, particularly in the Trump Justice Department, that faculty hiring giving preferences to particular racial or ethnic minorities to achieve “diversity” is also constitutionally suspect.
To put it simply, in the Supreme Court and in the executive branch, there seems now to be a clear trend to implement Justice Harlan’s conception of a color-blind Constitution. What, then, should be done with decades of Congress’s voting rights legislation, the actions of the Department of Justice to carry out the goals of that legislation, and the concomitant federal court interpretations that have mandated or at least have authorized the drawing of congressional districts designed to maximize the election of African-American representatives by creating majority-minority districts? Such behavior, of course, is a clear example of discrimination by race, and, indeed, appears to be a clear violation of the 15th Amendment’s prohibition on infringing the right to vote on racial grounds, and a violation of the 14th Amendment’s requirement that no state deprive anyone of the equal protection of the law.
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 Calais 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.
Remarkably, there have been Supreme Court cases where the Court, following the language of amendments to the Voting Rights Act of 1965, has seemed to suggest that members of minority groups, particularly African-Americans, are entitled to proportional representation in the federal legislature, essentially perpetuating a racial stereotype that only a person of one’s own race can fairly represent one.
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 Calais 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. Some Supreme Court cases have at least recognized that such an argument is dangerous racial stereotyping, if not blatant racism, and that the racial Balkanization such a strategy could lead to is not a healthy situation for a multiracial republic. For that reason, Supreme Court cases have not only rejected race-based college admissions and, by implication, faculty hiring, but have also struck down racially based remedies in the granting of municipal contracts.
Calais 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. As was pointed out in the remarkably arcane two-and-a-half-hour argument (long by today’s standards) in the Calais case, if there ever were a need for racially motivated redistricting, it is questionable whether that need persists today, given the current racial makeup of the U.S. Congress. There are currently approximately 60 African-American members of Congress, and three-quarters of those are elected from districts that are not majority-minority.
It is notoriously difficult to predict the final outcome of a Supreme Court case by the positions justices take in the argument of the case. Still, it was probably significant that the most powerful theme emerging from that lengthy argument was that a majority of the justices were skeptical of the notion that racial discrimination in redistricting, even if it were once permissible, should continue forever. It is notable (even if it was utterly arbitrary) that in a key college-admissions case in 2003, Justice Sandra Day O’Connor suggested that racially motivated affirmative action should end after a generation. And at least one of the justices in the argument of the Calais case, Justice Kavanaugh, asserted there should be a time limit to the permissibility of racially motivated redistricting.
It was not explicitly acknowledged during the oral argument, but what makes the Calais case so important is that it presents a clash between two stark visions of reconciling racial differences in our republic. One is the color-blind approach Harlan favored. The other, borrowing from the view expressed in such works as Ibram X. Kendi’s How to be an Antiracist (2019), and the view now dominant in the American academy (and in much of the Democratic Party), is that the United States is irredeemably guilty of systemic racism. In this view, the philosophy of the Jim Crow laws is still with us, the deck is inevitably stacked against African-Americans, and there is still an ongoing need to take racially based action to correct for prior and continuing discrimination.
Justices Kagan and Sotomayor, by their questioning, seemed to manifest such a view, and it appeared even more starkly in the remarkable and widely ridiculed suggestion by Justice Ketanji Brown Jackson that black voters needed the protection of majority-minority districts in much the same manner as disabled Americans needed the protection of the Americans with Disabilities Act. Justice Jackson’s take on the case did not seem to flow from neutral jurisprudential analysis, and there was some wisdom in the observation by John Hinderaker at Powerline that Justice Jackson is “perhaps the most nakedly political, and least traditionally rational, justice ever appointed to the Court.”
Should the Court adopt the color-blind approach and find racially motivated redistricting unconstitutional, it is not likely to end African-American membership in Congress, but it may end some majority-minority districts in future redistricting within the states. This could benefit the Republican Party, since majority-minority districts tend to favor Democrats. Indeed, in his questioning, it appeared that Justice Alito understood that what might really be at stake in these racial gerrymandering controversies was not constitutional violations but rather simple partisan political differences between Democrats and Republicans. It is likely that particular aspect that accounts for the extraordinary media interest in the Calais case, since the Court’s ruling could affect the upcoming 2026 midterms.
There is no doubt that the federal legislation involved in Calais, Section 2 of the Voting Rights Act of 1965, was designed to correct perceived racial imbalances. As the argument in the case made clear, the act now contains no requirement of prior malicious racial discrimination. In scheduling a rare second argument in Calais, as the Court did, it expressly invited advocates to address possible 14th and 15th Amendment violations arising from the racial redistricting mandated by the act.
For too long, the Court has winked at these constitutional violations by applying its made-up doctrine of “strict scrutiny,” which provides that supposedly benign racial discrimination is permissible where there is a “compelling” state interest, and where the discrimination is “narrowly tailored” to accomplish the state’s goals. No one really knows what those limitlessly pliable terms mean, nor how to reconcile the strict scrutiny doctrine with the clearly prohibitive language of the 14th and 15th Amendments. “Strict scrutiny” is a sort of “balancing test” that is legislative, not judicial, and should be seen as a stark violation of the Constitution’s scheme of separation of powers.
The questions at the oral argument in Calais seemed to indicate that a majority of the justices were skeptical of permitting racial redistricting without limit. A clear rejection of racially based redistricting in the Calais case would not only be a step toward the restoration of Justice Harlan’s vision but also the beginning of a restoration of the Constitution itself and a long-overdue correction of judicial usurpation of power within the American political system.
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