Some observations following up on my summary of the competing opinions in Allen v. Milligan:

1. In February 2022, the Supreme Court, by a vote of 5 to 4, granted a stay of the district court’s preliminary injunction. The Chief Justice dissented from that stay grant, and he stated that the district court could not “be faulted for its application of Gingles.” At the same time, he acknowledged that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim,” and he added a long string citation of criticisms of what he called the “wide range of uncertainties arising under Gingles.” Further, he supported the Court’s review of the district court’s decision “[i]n order to resolve” these uncertainties.”

So one might have thought that the Chief would use his majority opinion in Allen v. Milligan to bring some much-needed clarity and coherence to the Gingles test. But if he has done so, or even tried to do so, I’ve missed it.

Part II of the Chief’s analysis (pp. 9-15) concludes (as his dissent from the stay grant did) that the district court “faithfully applied our precedents.” His Part III faults “Alabama’s attempt to remake our §2 jurisprudence anew.” But the Chief’s disagreement with the particulars of Alabama’s approach provides no answer to Alabama’s broader point that the section 2 inquiry into whether the political processes are “equally open” to minority voters requires a race-neutral benchmark.

2. The Chief Justice famously concluded his majority opinion in Parents Involved v. Seattle School District No. 1 (2007) with this observation: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” His apparent resolve in this area has led to high hopes that he will use the Harvard and UNC racial-preference cases to clear up the confusion created by the Bakke and Grutter cases and bring an end to racially discriminatory admissions practices. But perhaps he will instead be content there, as he was here, to extend the confusion.

One big consideration that cuts the opposite way is that (rightly or wrongly) the Court has treated statutory rulings such as Gingles as entitled to much greater stare decisis weight than constitutional rulings. Another big consideration is that while “the line between racial predominance and racial consciousness can be difficult to discern” in decisions drawing district lines, it is much easier to discern in a college’s admissions policies and practices. Anyone who draws district lines will be aware of residential racial patterns and will need to make sure that the lines comply with section 2. Nothing comparable is true of admissions decisions.

A judicial realist (or cynic) might also suspect that the Chief’s ruling today gives him more leeway to stand strong in the Harvard and UNC cases.

3. I have argued that the straightforward way for the Court to resolve the Harvard and UNC cases is to apply the plain language of Title VI of the Civil Rights Act of 1964, which prohibits colleges that receive federal funds from discriminating on the basis of race. The reluctance of both the Chief Justice and Justice Kavanaugh to revisit Gingles might suggest a reluctance to revisit the Court’s rulings that have misapplied Title VI. On the other hand, as I outlined in this post, there are plenty of reasons why the very strong weight that the Court ordinarily gives to its statutory precedents should not apply to its previous botches of Title VI.