What Did You Say?

By: Jonathan Turley | October 16, 2025

Read more at https://jonathanturley.org/2025/10/16/race-based-remedies-should-have-an-end-point-justices-appear-ready-to-pull-the-plug-on-race-based-districting-under-the-voting-rights-act/

Yesterday, the Supreme Court held the long-awaited argument in Louisiana v. Callais, considering an appeal of Louisiana’s congressional map. The two majority-black districts are being challenged under the 15th Amendment and the Equal Protection Clause of the 14th Amendment as unconstitutionally gerrymandered on the basis of race. The case could result in a rejection of race-based congressional districting under Section 2 of the Voting Rights Act.

Notably, the Louisiana case was previously argued, but on the last day before the summer recess, the court issued an order setting the case for a second oral argument in the 2025-26 term. It later directed the litigants to file briefs addressing:

“whether the State’s intentional creation of a second majority-minority district violates either the 14th Amendment or the 15th Amendment, which bars the government from denying or restricting voting rights based on race.”

On Wednesday, I was addressing the annual conference of chief judges, speaking on the Supreme Court. I discussed some of the current cases, including Louisiana v. Callais. I noted that there may now be a majority in favor of a significant change on Section 2, but that some of us would be listening for Justices Brett Kavanaugh and Amy Coney Barrett as indicators of the Court balance.

We did hear from Kavanaugh and Barrett and the challengers could take heart in the skepticism that they expressed over the indefinite use of race in such districting.

The oral argument took an interesting turn when Justice Ketanji Brown Jackson sought to push back on the need to show a discriminatory intent. She interjected:

“I guess I’m thinking of it, of the fact that remedial action, absent discriminatory intent, is really not a new idea in the civil rights laws. And my kind of paradigmatic example of this is something like the ADA. Congress passed the Americans with Disabilities Act against the backdrop of a world that was generally not accessible to people with disabilities.‘

“And so, it was discriminatory in effect because these folks were not able to access these buildings. And it didn’t matter whether the person who built the building or the person who owned the building intended for them to be exclusionary. That’s irrelevant.‘

“Congress said the facilities have to be made equally open to people with disabilities if readily possible. I guess I don’t understand why that’s not what’s happening here. The idea in Section 2 is that we are responding to current-day manifestations of past and present decisions that disadvantage minorities and make it so that they don’t have equal access to the voting system.’

“They’re disabled. In fact, we use the word disabled in Milligan. We say that’s a way in which you see that these processes are not equally open.”

Justice Jackson appears to be referring to this paragraph in Allen v. Milligan:

“Individuals thus lack an equal opportunity to participate in the political process when a State’s electoral structure operates in a manner that “minimize[s] or cancel[s] out the[ir] voting strength.” Id., at 47. That occurs where an individual is disabled from “enter[ing] into the political process in a reliable and meaningful manner” “in the light of past and present reality, political and otherwise.” White, 412 U. S., at 767, 770. A district is not equally open, in other words, when minority voters face—unlike their majority peers—bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.” (emphasis added)

The court was not making an analogy to the ADA (though, in fairness to Justice Jackson, she was not suggesting that it made that point). It is also worth noting that Chief Justice John Roberts wrote:

“We have understood the language of §2 against the background of the hard-fought compromise that Congress struck. To that end, we have reiterated that §2 turns on the presence of discriminatory effects, not discriminatory intent.”

Milligan was deeply fractured and the question is whether five justices would now elect to set aside or reframe some of these former rulings.

During the oral argument, Roberts seemed to do precisely that in the use of Milligan, remarking “That case took the existing precedent as a given, it was a case in which we were considering Alabama’s particular challenge based on … what turned out to be an improper evidentiary showing.”

Moreover, Justice Kavanaugh (who was one of the concurrences in Milligan) suggested that we might have reached “the end point” on such race-based districting: “[T]his Court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but … they should not be indefinite and should have a[n] end point.”

Now, back to the ADA analogy.

The disabled face permanent and ongoing physical disabilities in accessing buildings and spaces. While Jackson was stressing that intent does not matter when it comes to discrimination against the disabled, the question of the other justices is whether the use of race-based districts will continue indefinitely.  The ADA is permanent because the disabilities are permanent.  The analogy plays into the very point of justices like Kavanaugh on whether race-based districting would continue ad infinitum.

If the oral argument is a reflection of the eventual votes of the justices, there now seems to be a working majority of justices willing to bring “an end point” to race-based districting. The result would have tremendous legal and political impact.

Legally, one of the most litigated areas of elections would be largely curtailed. The Voting Rights Act would still be used to prevent measures to inhibit voting and to protect the right to vote for every citizen. However, the constant districting controversies over guaranteeing majority black districts would come to an end.

The move would also be a major additional move of the Roberts court to eliminate the use of race-based classifications in society from college admissions to election districting. In a 2007 case, Chief Justice John Roberts stated that position most succinctly by declaring that the “way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Politically, any loss of such gerrymandering on the basis of race could impact the Democrats who hold the vast majority of these districts.

Of course, the Court could again fracture as it did in Milligan on the rationale for any opinion. What was notable about the oral argument is that there appeared to be at least five justices considering a threshold rejection of race-based districting under Section 2 of the Voting Rights Act.