SUPREME COURT OF THE UNITED STATES — Associate Justice Neil Gorsuch got a lawyer for the NAACP Legal Defense Fund to all but admit support for states intentionally discriminating on the basis of race in the redistricting process.
The moment came during the Supreme Court’s Wednesday oral arguments for a pair of cases known as Louisiana v. Callais and Robinson v. Callais, which center on the Louisiana Legislature’s use of race when creating its recent congressional map.
As The Federalist previously reported, the matter first arose “following ‘a previous lawsuit … where plaintiffs argued that the prior map’ put forward by the state ‘violated Section 2 of the Voting Rights Act by diluting minority votes,’ according to Oyez.” A district court order and subsequent legal battle prompted the Louisiana Legislature to “draft a new map last year ‘that included a second majority-black district,’ which plaintiffs in Louisiana v. Callais contend violates the 14th Amendment’s equal protection clause by ‘prioritizing race in its creation.’”
While the Supreme Court was initially supposed to issue a verdict on the matter during its 2024-2025 term, the court announced on the last day of the session that it would be rehearing arguments in the case this fall. The justices notably issued an order over the summer instructing parties in the case to address the question of “[w]hether [Louisiana’s] intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”
During his line of questioning, Gorsuch probed NAACP Legal Defense Fund lawyer Janai Nelson — who argued in favor of a second majority-black district in Louisiana — about whether she believes “a plaintiff in a Section 2 [Voting Rights Act] case has to come up with a map where race isn’t the predominant factor in the map, or is it OK for a federal court to use a map, on the remedial side, that intentionally discriminates on the basis of race?”
Nelson noted that “you do not have to use race to create the remedy in a map,” which prompted the Trump appointee to interject and clarify that what he’s asking is “whether one can,” and whether it is “acceptable under Section 2, as you understand it given our precedents, for a court to intentionally discriminate in a remedial map on the basis of race.”
“Not in those words. Not for a court to intentionally discriminate, but I think it depends. There may be a circumstance where the only possible remedy is the limited use of race,” Nelson replied. “I will say that I think those circumstances are rare, and the permissibility of race is constrained by strict scrutiny. This court has a very clear precedent around ensuring that race does not motivate the line-drawer in a way that requires a map to be drawn that isn’t narrowly tailored, that uses race for race’s sake. There are already constraints between [Thornburg v. Gingles] and [Shaw v. Reno] that keep the use of race within constitutional bounds.”
The NAACP attorney’s conflicting answer prompted Gorsuch to follow up on the matter. He said that while he “understand[s] that,” “one argument is often, ‘Well, once you’ve found a Section 2 violation, you’ve got a compelling interest to go ahead and discriminate on the basis of race in your remedial map.'”
“I’m just wondering [if] you endorse that view or do you reject that view?” Gorsuch asked.
Nelson replied, “I don’t endorse the concept of discriminating on the basis of race. If discrimination has been established under Section 2 and a state determines that it needs a very precise incision of race in order to remedy that Section 2 violation, then Section 2 and this court’s precedent supports that.”
The Trump appointee noted how “sometimes federal district courts order maps” and that it appears that what Nelson is arguing is that it’s “sometimes [it is] acceptable for a federal district court to order a map that intentionally discriminates on the basis of race.”
In disagreeing with the justice’s “formulation,” Nelson argued that “states and plaintiffs, as they put forth illustrative maps, cannot put forth maps that discriminate and that use race in an excessive fashion.” “The only actor that has broader leeway,” she continued, “are states because we give states breathing room” and “wide latitude in order to balance their political interests and concerns.”
“So, federal district courts can’t discriminate on the basis of race in remedies, but states can?” Gorsuch asked.
“Federal district courts can only order maps that are constitutional, and, again, the constitutional boundaries are between Gingles and Shaw,” Nelson said.
Seeking to pin down Nelson’s position on the issue, Gorsuch asked, “You said states ‘have more breathing room.’ So, do they have the ‘breathing room’ to intentionally discriminate on the basis of race?”
While Nelson said that states “don’t have breathing room to intentionally discriminate on the basis of race,” she then appeared to undermine that position with a quick follow-up statement.
“They have breathing room to use race to remedy their own discrimination,” Nelson said.
Associate Justice Brett Kavanaugh attempted to get further clarity from Nelson on the subject. Following Gorsuch’s line of questioning, Kavanaugh said “the hang-up there is the word ‘discriminate,'” and asked the NAACP attorney if what she’s arguing is that federal district courts “can intentionally use race in those circumstances.”
“If needed,” Nelson replied. “There are often a wide range of possibilities and alternatives that don’t require that.”
