A columnist has stepped forward to defend Louisiana v. Callais, a 6-3 Supreme Court ruling that has drawn a wave of academic criticism. Louisiana v. Callais, the writer argues, is consistent with long-standing equal protection doctrine and the court’s resistance to reading federal statutes to mandate race-based line-drawing in elections.
The author notes that legal academia has been notably one-sided in its reaction. He recounts advice he received decades ago from Elena Kagan, then dean of Harvard Law School and formerly his Administrative Law professor. He had planned to enter the field of race discrimination law while opposing racial preferences. He says Kagan warned that scholars in that area overwhelmingly favored such preferences and would likely block his hiring, prompting him to pursue class action scholarship instead. He frames this as an example of ideological capture that narrows debate on race-related questions.
Louisiana v. Callais and Section 2
The central dispute in Louisiana v. Callais was whether Section 2 of the Voting Rights Act can be read to require states to sort voters by race when drawing districts to ensure that Black voters can elect candidates of their choice. Assigning voters to districts based on race is racial discrimination, the author writes, and equal protection generally forbids such discrimination unless it satisfies strict scrutiny. On that premise, the court declined to interpret Section 2 to demand more than the Constitution allows.
According to the author, many academics instead embrace an anti-subordination view of equal protection, which focuses on countering social hierarchy rather than prohibiting all racial classifications. By that logic, race-conscious measures to aid historically subordinated groups, including Black voters, are acceptable. The writer observes that the Supreme Court has repeatedly rejected that approach, maintaining that the Equal Protection Clause safeguards all races equally and that race-based policies must clear strict scrutiny.
Proportional versus proportionalish representation
The piece contends that Congress lacked the votes to require flat racial proportionality in districts and instead crafted language that nudges outcomes toward what he dubs “proportionalish representation.” He argues that the court has long treated such targets as impermissible racial balancing, a concept disallowed in areas like higher education admissions and government contracting. He questions why voting should be treated differently by elevating racial proportionality over other constituencies, such as urban or rural residents, generational cohorts, or partisans.
The author considers whether the Fifteenth Amendment could supply the compelling interest needed for race-based remedies. He concludes that it does not authorize remedies for unintentional racial effects, only for intentional racial discrimination, and that the court in Louisiana v. Callais took the same view. On that basis, Congress’s enforcement power reaches purposeful discrimination but not racial outcomes alone.
Shortcomings and consequences in Louisiana v. Callais
The author acknowledges flaws in the opinion. He calls it poorly written, attributes that to the compromises of multi-justice drafting, and suggests the court minimized how far it moved from prior readings of Section 2. He adds that originalist questions raised by justices like Clarence Thomas, including why Congress is bound by equal protection in the first place, went unanswered.
He also warns that the ruling clears away a remaining obstacle to unrestrained partisan gerrymandering, an outcome he opposes, but says expecting race-discrimination law to cure partisan mapmaking is unrealistic. He urges lawmakers to target partisan gerrymandering directly if they wish to stop it. The essay closes by urging a broader effort to address what he describes as partisan gerrymandering within the academy, arguing that a more ideologically diverse scholarly culture would produce fuller debate on cases like Louisiana v. Callais.
