The Supreme Court’s Most Worrisome Non-Decision

In Milligan, one of Alabama’s arguments was that this framework, which allows courts to remedy racial-gerrymandering claims by ordering or drawing new maps, itself amounts to race-based redistricting and therefore violates the Equal Protection Clause. Roberts noted in his majority opinion that the Supreme Court had held otherwise for the last four decades, and Kavanaugh observed that “the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents.”

Kavanaugh then opened the door to another avenue of attack. “Justice Thomas notes [in a dissenting opinion], however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future,” he added. “But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” By highlighting this argument and implicitly agreeing with it, he invited litigants to bring it before the court in future cases.

The temporal argument, as Kavanaugh phrased it, is telling. In the mid-20th century, the federal government dismantled nearly all of the legal architecture of Jim Crow racial apartheid in the American South and elsewhere. Congress enacted powerful laws like the Voting Rights Act that created new tools to challenge specific laws and practices. The Supreme Court’s liberal majority overturned past errors like Plessy v. Ferguson, which entrenched de jure racial segregation, and breathed new life into the Reconstruction-era amendments.

The Roberts Court is apparently unwilling to strike down those laws or overturn those rulings on the merits—that is to say, they have yet to rule that those civil rights efforts were unconstitutional in the 1950s or 1960s. Doing so would be tantamount to embracing Jim Crow again. Instead, they have argued that the laws and rulings are no longer permissible because they solved the problem, or at least have done so sufficiently to render them unnecessary.