The Supreme Court’s decision in Louisiana v. Callais, barring racial gerrymandering, has many on the left feigning vapors, despite the predictions of many of us that this result was likely.
While figures such as Rep. Jamie Raskin (D-Md.) declared that the court itself has been “gerrymandered” to rig the upcoming elections, this decision is actually the culmination of decades of jurisprudence by various justices — particularly Chief Justice John Roberts.
Indeed, the decision will cement the legacy of the Roberts Court in moving the country toward a colorblind system of laws.
Like most Americans, Roberts abhors racial discrimination in any form. He holds the quaint idea that when the drafters of the 14th Amendment barred discrimination on the basis of race, they meant it. This is why, in 2006, Roberts famously wrote, “It is a sordid business, this divvying us up by race.”
Roberts sees no difference between such discrimination when it disfavors one or another race. It is all a sordid business, and he has spent decades writing eloquent arguments for the court to abandon its conflicted and hypocritical approach to racial discrimination.
The court has struggled to rationalize using race to discriminate when it serves a higher purpose, such as greater equity or affirmative action. Some of those opinions were constitutionally incomprehensible.
For example, in 2003, in Grutter v. Bollinger, the court divided five to four on whether to uphold racial admissions criteria used to achieve “diversity” in a class at the University of Michigan Law School. However, in her opinion with the majority, Justice Sandra Day O’Connor stated that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Few of us could understand how O’Connor found a type of expiration date on permissible racial criteria in the Constitution.
Throughout that period, however, certain justices held firm that there is a bright-line rule against such racial criteria. That includes the author of the court’s Callais decision, Justice Samuel Alito, but also Roberts, who in 2007, put it succinctly: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
One can certainly disagree with this interpretation and the low tolerance for racial criteria. However, this had nothing to do with the midterm elections. It is the result of dozens of opinions building up to this point.
From college admissions to gerrymandering, the court has created the bright line that figures like Roberts have long sought. In doing so, they have moved this country closer to a colorblind jurisprudence than at any time in our history.
The Biden administration was found repeatedly to have violated the Constitution through racial discrimination in federal programs. Democratic leaders have fought this trend and have pledged to reverse these decisions. Some even demand that Democrats pack the Court with a liberal majority as soon as they retake power.
Last year, the Supreme Court ruled unanimously in Ames v. Ohio Department of Youth Services that whites cannot be placed under additional burdens when bringing discrimination lawsuits.
Much of the coverage of the Callais decision is long on rhetoric and short on substance. The court did not “gut” the Voting Rights Act. It also did not strike down Section 2 of the act. Rather, the court held that neither the act nor the Constitution gives legislators authority to manipulate districts so as to effectively guarantee the race of the elected representatives — any race.
For decades, the courts have faced endless litigation over district configurations designed to elect minority representatives. It is a system that gave candidates an advantage based solely on their race. The court held that such racial gerrymandering is unlawful. The Voting Rights Act will now be read to prevent intentional racial discrimination. Courts will still bar any districts designed “to afford minority voters less opportunity because of their race.”
That does not mean that racial discrimination has been eliminated in our nation, or that we do not need to commit ourselves wholly to its eradication. The stain of slavery and segregation remains with us, as does the lingering scourge of racial prejudice. African Americans and other minorities still face invidious discrimination that cannot be tolerated in our system. We still have much work to be done.
In the area of voting rights, the courts have and will continue to strike down any rules designed to suppress or block minority voters.
Despite this ongoing struggle with racism, there are reasons to be hopeful.
As the Rev. Martin Luther King put it, “The arc of the moral universe is long, but it bends toward justice.” Non-whites are now powerful players in American politics. White voters are expected to be a minority in this country within two decades.
We have now elected a black president and a black vice president. Minority Leader Hakeem Jeffries (who declared the Court “illegitimate” after the Callais opinion) expects to be the next Speaker of the House of Representatives.
This progress was hard-fought, and both the Voting Rights Act and the Civil Rights Act played important roles in achieving greater racial diversity in our society.
And the Callais decision is also part of that progress. We are moving into a new era where racial criteria and discrimination are neither rationalized nor tolerated. There is now reason to hope that we will indeed end “this sordid business, this divvying us up by race.”
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.“