CNN
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Supreme Court Justice Clarence Thomas has been imploring his colleagues for decades to gut a crucial part of the iconic Voting Rights Act that prohibits practices denying Blacks, Hispanics and other racial minorities an equal right to vote.
When Thomas first laid out his objections in 1994, insisting that the act was exacerbating rather than easing “racial tensions,” several colleagues called his position “radical,” and only Antonin Scalia endorsed it.
But as more right-wing justices have joined the court, the views of Thomas, a conservative African American, have gained traction.
Now, a mysterious order from the high court in a Louisiana redistricting case suggests it is seriously reconsidering the scope of VRA safeguards against congressional and state legislative district maps that dilute minority votes. The looming battle comes as some states, notably Alabama, are resisting court orders to remedy discrimination, and President Donald Trump’s Justice Department is abandoning the federal government’s usual role in protecting minority voting rights.
The justices’ eventual action on this case and other simmering controversies, which would affect congressional maps used in the 2026 elections and beyond, could lead to a retrenchment of practices that consider race to ensure that minorities are not put at a disadvantage. The entire debate necessarily acquires a partisan dimension as Blacks and other minority voters tend to lean Democratic.
The stakes in the Louisiana dispute pending at the high court rose when the justices on June 27, the last day of their regular session, revealed that they had not been able to resolve the case that had been argued in March. The justices announced it would be reargued in the upcoming session that begins in October and that they’d issue a subsequent order regarding additional ground to be covered.
Rarely do the justices order a new argument in a controversy, but when they do, the move tends to expand the possible consequences, as happened in the 2010 Citizens United campaign finance dispute. After reargument, the justices overturned precedent and gave corporations and labor unions new First Amendment rights for vast spending in elections.
Deepening the puzzle of what may be developing at the Supreme Court, Thomas wrote a six-page dissenting statement to the June 27 order in Louisiana v. Callais. He was ready to act now.
Thomas wanted the court to rule outright that the VRA’s Section 2, which requires consideration of voters’ race to ensure that congressional and state legislative voting districts are drawn fairly, violates the Constitution’s guarantee of equal protection.
“I am hopeful that this Court will soon realize that the conflict its Section 2 jurisprudence has sown with the Constitution is too severe to ignore,” Thomas wrote.
No other justice signed onto that particular Thomas dissent, but in the past Justice Neil Gorsuch, who succeeded Scalia in 2017, has fully joined Thomas’ sentiment regarding “the disastrous misadventure of this Court’s voting rights jurisprudence.”
Justices Samuel Alito and Amy Coney Barrett joined parts of Thomas’ view two years ago, pressing for a “race neutral” approach, in a controversy over Alabama’s redistricting map.
The four – Thomas, Gorsuch, Alito and Barrett – dissented in that 2023 case of Allen v. Milligan as Chief Justice John Roberts crafted a narrow majority to affirm Section 2’s protections for racial minorities in redistricting battles.
Roberts insisted the dissenters’ approach would force the court to turn its back on a swath of precedent. “Section 2 itself demands consideration of race” when correcting a discriminatory map, he wrote. The question whether additional majority-minority districts can be drawn “involves a quintessentially race-conscious calculus.”
Roberts’ opinion marked a sharp turn in his own opposition to racial remedies. In a 2007 case, he wrote, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts also authored the 2013 milestone, Shelby County v. Holder, that dismantled a separate Voting Rights Act section that had required states with a history of discrimination to obtain federal approval for any electoral changes.
During March oral arguments in the Louisiana case, Roberts was skeptical of the state’s new map with two Black-majority districts, which were created after a lower court found the original map with a single Black-majority district likely violated Section 2. Roberts questioned whether one of the new districts was sufficiently “compact” to meet standards; he called it “a snake that runs from one end of the state to the other.”
Gorsuch quickly echoed Roberts, and Gorsuch went further to suggest any consideration of race, to redraw a discriminatory map, would breach the 14th Amendment’s guarantee of equal protection.
Justice Brett Kavanaugh questioned whether there should be a “durational” limit on the use of Section 2, that is, that “the authority of a state to engage in race-based redistricting must have an end point.”
The pending case began when a US district court found Louisiana’s original 2022 map, with a single Black-majority district, denied Black voters an equal opportunity to elect their preferred candidates. Black people make up about one-third of the state’s population. The state has six congressional districts.
The Louisiana legislature redrew the map to create two Black-majority districts but also to protect the state’s favored incumbents, including House Speaker Mike Johnson. A group of mostly White voters subsequently filed their own lawsuit, saying that the state legislature unconstitutionally created a racial gerrymander and adopting some of Thomas’ arguments.
“I would like to think that his view of the VRA is still a radical view on this court,” said Stuart Naifeh, of the NAACP Legal Defense and Educational Fund, one of the lawyers who defended Louisiana’s new map at the high court in March. Naifeh noted that Supreme Court precedent sets specific standards for when Section 2’s redistricting remedy is required, with attention to current conditions and racial polarization in a state.
Naifeh and Louisiana Solicitor General Benjamin Aguinaga emphasized that the court has said legislatures have “breathing room” to accommodate political interests, such as the protection of incumbents, along with racial considerations. That is why the lines of some remedial districts may appear loosely drawn or, as Roberts described it, snakelike.
Edward Greim, a Kansas City, Missouri, lawyer who represented those challenging the revised map declined to comment on the court’s new order and Thomas’ position.
During the oral arguments, Greim urged the justices to consider whether the VRA remedy had run its course.
“Why are we suddenly now – as voters are becoming more integrated, why are we suddenly finding new Section 2 districts everywhere? I think that’s a problem,” he said.
One related issue the justices could soon take up is whether private individuals and advocacy groups can sue under the VRA’s Section 2. That question has grown in salience as the Trump DOJ withdraws or switches sides in voting rights disputes.
Ruling against Native American tribes in a North Dakota redistricting case, the 8th US Circuit Court of Appeals broke with other lower courts and said only the Justice Department could bring such claims. Lawyers for the tribes told the 8th Circuit on Wednesday that they will appeal the case to the Supreme Court.
“There is no other circuit in the country in which private plaintiffs are unable to enforce their rights under Section 2 …” the lawyers for the two tribes said in their notice to the 8th Circuit. “As a result, American citizens in the states of this circuit have fewer enforceable voting rights than the citizens in every other state in the country.”
The appeals court’sMay ruling built on a separate groundbreaking 8th Circuit decision, in a 2023 case from Arkansas, that cited the writings of Justices Gorsuch and Thomas, characterizing the availability of a private right of action as an “open question.”
Thomas, who became a justice in 1991, has consistently clung to the VRA views he expounded in the 1994 case of Holder v. Hall.
“The statute was originally perceived as a remedial provision directed specifically at eradicating discriminatory practices that restricted blacks’ ability to register and vote in the segregated South,” he wrote at the time. “Now, the Act has grown into something entirely different. In construing the Act to cover claims of vote dilution, we have converted the Act into a device for regulating, rationing, and apportioning political power among racial and ethnic groups.”
“In short,” Thomas added, “few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.”
