In Supreme Court arguments on Tuesday, members of the court’s conservative majority seemed to be searching for a narrow way to uphold a congressional map drawn by Alabama lawmakers that a lower court had said diluted the power of Black voters, violating the Voting Rights Act.
Based on their questioning, which was subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new limits on how the 1965 act applies in redistricting cases.
The court’s three liberal members pushed hard to curb the damage to the law, which Justice Elena Kagan called “one of the great achievements of American democracy.” She added that “in recent years, this statute has not fared well in this court,” a reference to decisions in 2013 and 2021 that undercut the law’s effectiveness in protecting minority voters.
Justice Ketanji Brown Jackson said the law had to be understood in the context of the history of the 14th Amendment, adopted after the Civil War, which was meant to protect formerly enslaved Black people. “That’s not a race-neutral or race-blind idea,” she said.
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Justice Kagan said she feared the new case was the third part of a trilogy. “You’re asking us to cut back substantially on 40 years of precedent,” she told Edmund G. LaCour Jr., Alabama’s solicitor general.
He argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.
“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.
Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives and the author of last year’s voting rights decision, indicated that Mr. LaCour had gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”
Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Brett M. Kavanaugh and Amy Coney Barrett asked mainly neutral questions.
“If one just listened to the oral argument, one might think that these justices are up for grabs in this case,” Richard L. Hasen, a law professor at the University of California, Los Angeles, said of those three justices. But he cautioned that questioning can be misleading and that the court may well rework the leading precedent to make it harder to challenge voting maps.
The case, Merrill v. Milligan, No. 21-1086, came from Alabama, which has seven congressional districts, and concerns Section 2 of the Voting Rights Act. The voting-age population in the state is about 27 percent Black.
In November 2021, Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census. It maintained a single district in which Black voters make up a majority.
That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.
After Black voters and advocacy groups challenged the map under the Voting Rights Act, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district “in which Black voters either comprise a voting-age majority or something quite close to it.”
The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.
Meet The Times’s Supreme Court Reporter
Adam Liptak, who has been covering the Supreme Court since 2008, started at The Times as a copy boy in 1984. He left to attend Yale Law School, became a practicing lawyer and worked in The Times’s corporate legal department before returning to the newsroom. Learn about how he approaches covering the court.
Following the Beat of the Court
March 17, 2022
The panel found that voting in the state is racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.
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In February, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that this fall’s election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.
The justices also agreed to hear an appeal of the ruling on its merits, which is what was argued on Tuesday.
In dissenting from the February order, Chief Justice Roberts said the lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Still, he wrote, the Supreme Court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
Section 2 bans any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
At the argument on Tuesday, Justice Kagan said the case was straightforward. “Under our precedents,” she said, “it’s kind of a slam dunk.”
Civil rights leaders and some Democrats say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.
Based on their questioning, which was subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new limits on how the 1965 act applies in redistricting cases.
The court’s three liberal members pushed hard to curb the damage to the law, which Justice Elena Kagan called “one of the great achievements of American democracy.” She added that “in recent years, this statute has not fared well in this court,” a reference to decisions in 2013 and 2021 that undercut the law’s effectiveness in protecting minority voters.
Justice Ketanji Brown Jackson said the law had to be understood in the context of the history of the 14th Amendment, adopted after the Civil War, which was meant to protect formerly enslaved Black people. “That’s not a race-neutral or race-blind idea,” she said.
Advertisement
Continue reading the main story
Justice Kagan said she feared the new case was the third part of a trilogy. “You’re asking us to cut back substantially on 40 years of precedent,” she told Edmund G. LaCour Jr., Alabama’s solicitor general.
He argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.
“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.
Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives and the author of last year’s voting rights decision, indicated that Mr. LaCour had gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”
Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Brett M. Kavanaugh and Amy Coney Barrett asked mainly neutral questions.
“If one just listened to the oral argument, one might think that these justices are up for grabs in this case,” Richard L. Hasen, a law professor at the University of California, Los Angeles, said of those three justices. But he cautioned that questioning can be misleading and that the court may well rework the leading precedent to make it harder to challenge voting maps.
The case, Merrill v. Milligan, No. 21-1086, came from Alabama, which has seven congressional districts, and concerns Section 2 of the Voting Rights Act. The voting-age population in the state is about 27 percent Black.
In November 2021, Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census. It maintained a single district in which Black voters make up a majority.
That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.
After Black voters and advocacy groups challenged the map under the Voting Rights Act, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district “in which Black voters either comprise a voting-age majority or something quite close to it.”
The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.
Meet The Times’s Supreme Court Reporter
Adam Liptak, who has been covering the Supreme Court since 2008, started at The Times as a copy boy in 1984. He left to attend Yale Law School, became a practicing lawyer and worked in The Times’s corporate legal department before returning to the newsroom. Learn about how he approaches covering the court.
Following the Beat of the Court
March 17, 2022
The panel found that voting in the state is racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.
Advertisement
Continue reading the main story
In February, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that this fall’s election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.
The justices also agreed to hear an appeal of the ruling on its merits, which is what was argued on Tuesday.
In dissenting from the February order, Chief Justice Roberts said the lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Still, he wrote, the Supreme Court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
Section 2 bans any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
At the argument on Tuesday, Justice Kagan said the case was straightforward. “Under our precedents,” she said, “it’s kind of a slam dunk.”
Civil rights leaders and some Democrats say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.
Supreme Court Leans Toward Alabama in Voting Rights Dispute
But several members of the court’s conservative majority rejected the state’s most aggressive arguments in defense of its congressional voting map.
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