As expected, Justice Alito drafted the opinion in Louisiana v. Callais, striking down Louisiana’s proposed racial gerrymander. In doing so he held that compliance with Section 2 of the Voting Rights Act can — if “properly construed” — present a third possible operation of race discrimination that survives strict scrutiny. That proper construction of Section 2 entails intentional race discrimination in drawing legislative maps. Mere racially disparate effects don’t cut it.
Some conservatives may be disappointed that Alito didn’t just kill Section 2 as unconstitutional, as Justice Thomas has long advocated (and does again here, joined by Justice Gorsuch). As the ever-astute Will Chamberlain notes, though, this result “is actually *better* than getting rid of section 2 outright.” This is because under Callais, voters will still be able to challenge majority-minority districts enacted by Democrats.
The problem with Republican-drawn maps that supposedly required majority-minority districts under the VRA was that they would deprive certain minorities of representation in their effort to maximize Republican representation. This isn’t intentional: The point is to elect Republicans, not to strip minority representation. That race and party can be strongly correlated means that a partisan gerrymander can — and often does — have disparate racial effects. But it’s almost never intentional.
Not so with Democrats. The Democratic political coalition involves complex multiracial patronage operations. While Republicans maintain their coalition by controlling for geography, education, ideology, and the like, Democrats often need to take race into account for coalition-management purposes. Judge Ken Lee, in his dissent regarding the California gerrymander, observed that California’s redistricting expert intentionally created majority-Hispanic districts, and he did so because “race-based interest groups wanted certain racial outcomes out of the process.”
In other words, a continued ban on intentional racial discrimination — apart from being the best reading of the statute — provides both a shield to protect Republican partisan gerrymanders and a sword with which to attack Democratic racial gerrymanders. The only question is whether Justice Gorsuch would, in such a case, apply the Callais rule under stare decisis principles in lieu of what he thinks is the better constitutional rule. If he doesn’t, then there simply aren’t five votes to strike down a Democratic racial gerrymander, and it’s all theoretical.
The opinion shows why Alito is simply without peer in living memory. It was said of the Napoleonic frigate captain, Thomas Cochrane (the inspiration for Patrick O’Brian’s Jack Aubrey), that his genius in combat was in turning a seeming disadvantage into an advantage. That’s what Alito did here.
Three years ago in Allen v. Milligan, the Supreme Court declined an opportunity to rule Section 2 unconstitutional, resulting in a second Democratic district in Alabama. Chief Justice Roberts and Justice Kavanaugh were in the majority. Therefore Alito knew that he was stuck with Section 2 and the long-standing precedent of Thornburg v. Gingles. But he turned that disadvantage into an advantage by accepting Section 2 but construing it correctly and narrowly to maintain a prohibition on intentional discrimination. As a result he got Roberts and Kavanaugh while providing a rule of decision that is even more aggressive in terms of combating race-conscious politics than simply overturning Gingles and striking down Section 2.
It takes a tactical and lawyerly mind like Alito’s to reach an outcome like that. You can see why he wouldn’t want to give up his jurisprudential swashbuckling.