Your Democracy Has Been Updated
The Court updates the Voting Rights Act
In a democracy, law restrains power. The Supreme Court’s decision in Louisiana v. Callais undermines that ideal in several ways all at once. It overturns precedent, rewrites law, greenlights unbridled gerrymandering, and abandons any judicial role in maintaining the fairness of political competition.
Other writers have observed that Callais has triggered another round of unrestrained partisan gerrymandering and will reduce the number of majority-black congressional districts. That was literally the point. To phrase the point in legal terms, Callais held that Louisiana violated the Constitution when the State drew a congressional district map to include an additional majority-black district.
The Callais update
The Court acknowledged it was changing the law, except that instead of using the word “change,” it used the word “update.” Justice Alito’s opinion for the majority states that the Court would not abandon the so-called “Gingles framework,” which is shorthand for the Court’s interpretation of the Voting Rights Act set forth in a 1986 case called Gingles. The opinion declares that it “need only update the framework so it aligns with the statutory text and reflects important developments since we decided Gingles 40 years ago.” The word “update” here is a euphemism for “overrule and discard.”
The majority justices leaned heavily on the “update” concept, as if they were downloading new anti-virus software but leaving the core functionality intact, because they did not want to admit that they were overruling Gingles and other precedents that interpret the Voting Rights Act. The reason for refusing to acknowledge the overruling of Gingles is that Supreme Court precedents are meant to be strongest, and least susceptible to overruling, when they interpret statutes (such as the Voting Rights Act). The “update” euphemism also avoided headlines that would have persisted for years if the Supreme Court had struck down the Voting Rights Act as unconstitutional. There was no need to overrule precedent or strike down legislation when a simple update would do the trick.
What did Callais “update,” exactly? The “update” was to redefine what it means for members of a minority group to have “less opportunity than other members of the electorate to participate in the political process.” Before Callais, the basic question was whether black citizens had less opportunity than white citizens to elect representatives. This occurred when white citizens voted as a bloc, thereby precluding a politically and geographically cohesive minority population from electing representatives. After Callais, the question is whether black voters will have less opportunity to elect candidates than other voters who share their voting preferences. The italicized language is the update—the comparator is no longer white citizens, but instead citizens who share the same political preferences as the plaintiff minority group. This changes the law entirely.
The Callais update would matter less if partisan gerrymandering were unlawful under federal law. That is not the case. The Supreme Court will not hear partisan gerrymandering claims, which is the same thing as green-lighting partisan gerrymandering. Its 2019 decision in Rucho at least had the decency to observe that gerrymandering is “incompatible with democratic principles,” even as the Court refused to do anything about it. But Callais transforms partisan gerrymandering from anti-democratic practice into a full justification for drawing districts that disenfranchise minority voters.
The Callais majority seemed most concerned with ensuring that a partisan gerrymandering claim is never adjudicated, declaring that “a state legislature may use partisan advantage as a factor in redistricting” and “litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb.” (Opinion 28) When race and political party preference are highly correlated, this means that a state legislature is free to dilute minority voting power, absent strong evidence that the only reason for drawing the map was to discriminate based on race.
The Supreme Court thus has left state legislatures free to draw any map they want, including explicitly partisan maps drawn to dilute the voting power of the opposing political party and maps drawn for purposes of incumbency protection. And state legislatures are free to eliminate every majority-black district in America, so long as they state that the reason for doing so is to harm Democrats.
Winning is everything
Callais is disturbing for many reasons. It overrules prior precedents while claiming to be installing mere updates. It opts to interpret the Voting Rights Act in light of “vast social change,” even though in most other cases the Court insists on an originalist interpretation of statutes. Callais shows that originalism is no genuine restraint on judicial activism. Callais uses the apparatus of “strict scrutiny” to dismantle a law designed to protect the political process from prejudices affecting discrete minorities and black citizens in particular. It protects the majority’s right to be free from law, which inverts Supreme Court precedent and turns law into a vehicle for extinguishing any consideration of race.
What could motivate the Court to change the law so dramatically, in ways that plainly undercut its other stated commitments to precedent and originalism? I think this case is part of a deeper shift. Specifically, the source of political legitimacy has migrated over the years. It was fair competition. Now the highest source of political legitimacy is just winning itself, and legal efforts to maintain fair competition in the political arena such as court-ordered maps, are inherently suspect.
I think the fundamental principle underlying the majority’s decisions, and the great unifying theory of modern Trump-aligned politics, is that those who win competitions deserve to win, and those who lose deserve to lose. Wealth proves industriousness and acumen. Political success proves righteousness. Strength is virtue and success is strength. Those who use law to interfere with the natural outcomes of markets and free-for-all politics undermine both strength and virtue—and are enemies of the republic.
This outlook derives from an American tradition of libertarianism. But today’s rulers have adopted a philosophy that goes much further than free-market ideology ever did. They suppose that everyone is free to twist the law to their advantage, and those who fail to do so, well again, they deserve to lose. In short, they have turned to a form of social Darwinism in which the law is secondary to competition in a state of nature. The result is a judicial opinion that openly declares that incumbency protection and partisan advantage are legitimate state interests, while litigation efforts to limit partisan gerrymandering or equalize opportunity are invalid and impermissible.
The problem with elevating winner-takes-all contests over law is that winners in contests of force are not necessarily the most virtuous. People might prefer to live in a system in which decisionmaking is not controlled by the most resourceful, but instead by those who are the most wise or kind or just the most representative. In other words, at least in the liberal enlightenment tradition, people can deliberately choose a government based on law that restrains power. That this premise is now felt by the Court as an infringement upon the individual rights of the most powerful shows that it is gravitating away from the shared assumptions of democracy itself.