cross-posted from: https://sh.itjust.works/post/43457696

One of the biggest mysteries that has emerged from the Trump-era Supreme Court is the 2023 decision in Allen v. Milligan.

In Milligan, two of the Republican justices — Chief Justice John Roberts and Justice Brett Kavanaugh — voted with the Court’s Democratic minority to strike down Alabama’s racially gerrymandered congressional maps, ordering the state to redraw those maps to include an additional district with a Black majority.

So why did two Republican justices break with their previous skepticism of gerrymandering suits in the Milligan case? A new order that the Supreme Court handed down Friday evening appears to answer that question.

The new order, in a case known as Louisiana v. Callais, suggests that the Court’s decision in Milligan was merely a minor detour, and that Roberts and Kavanaugh’s votes in Milligan were largely driven by unwise legal decisions by Alabama’s lawyers. The legal issues in the Callais case are virtually identical to the ones presented in Milligan, but the Court’s new order indicates it is likely to use Callais to strike down the Voting Rights Act’s safeguards against gerrymandering altogether.

The Callais order, in other words, doesn’t simply suggest that Milligan was a one-off decision that is unlikely to be repeated. It also suggests that the Court’s Republican majority will resume its laissez-faire approach to gerrymandering, just as the redistricting wars appear to be heating up.

On Friday, the Court issued a new order laying out what these parties should address in those briefs. Those briefs should examine whether the lower court order requiring Louisiana to draw an additional Black-majority district “violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” The justices, in other words, want briefing on whether Gingles — and the Voting Rights Act’s safeguards against racial gerrymandering more broadly — are unconstitutional.

This suggestion that the Voting Rights Act may be unconstitutional — or, at least, that it violates the Republican justices’ vision of the Constitution — should not surprise anyone who has followed the Court’s voting rights cases.

“There is no denying,” Roberts wrote for the Court in Shelby County, “that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”

Although Kavanaugh joined nearly all of the majority opinion in Milligan, he also wrote a qseparate opinion indicating that he wanted to extend Shelby County to gerrymandering cases in a future ruling. “Even if Congress in 1982 could constitutionally authorize race-based redistricting under [the Voting Rights Act] for some period of time,” Kavanaugh wrote, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

Gingles also suggests that Voting Rights Act suits challenging racial gerrymanders should eventually cease to exist. If the electorate ceases to be racially polarized — something that appears to be slowly happening — then Gingles plaintiffs will no longer be able to win cases, and the federal judiciary’s role in redistricting will diminish. But Kavanaugh seems to be impatient to end these suits while many states remain racially polarized.

Read in the context of Kavanaugh’s Milligan opinion, in other words, the new Callais order suggests that a majority of the justices have decided the Voting Rights Act’s safeguards against racial gerrymandering have reached their expiration date, and they are looking for arguments to justify striking them down.

It now looks like Milligan was Gingles’s last gasp. The Republican justices remain hostile both to the Voting Rights Act and toward gerrymandering suits more broadly. And they appear very likely to use Callais to remove one of the few remaining safeguards against gerrymanders.