The Supreme Court case that could rewrite civil rights law

Tomorrow (Wed., Oct. 15), the Supreme Court will hear oral arguments in a case, Louisiana v. Callais, that could be the most devastating blow to civil rights in decades. Ultimately, the issue is whether statutes can create liability when there is a racially discriminatory impact.

For half a century, the Supreme Court has held that proving discrimination under equal protection requires that plaintiffs demonstrate that the government acted with a discriminatory intent. But it is very difficult to prove discriminatory intent. Legislators and government officials rarely express racist purposes. Implicit bias and unconscious racism can infect decisions.

Thus, many federal and state laws create liability if there is proof of a racially discriminatory effect. The issue in Louisiana v. Callais is whether disparate impact liability violates equal protection because decision-makers need to consider the racial consequences of their conduct in order to avoid liability.

Justice Antonin Scalia raised this issue in a concurring opinion in 2009 in Ricci v. DeStefano, a case involving employment discrimination. He said that the Court was just "postpone[ing] the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection? .. [I]f the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that third parties -- e.g., employers, whether private, State, or municipal -- discriminate on the basis of race." He said that "the war between disparate impact and equal protection will be waged sooner or later."

That is exactly what is before the Court in Louisiana v. Callais, a case involving the Voting Rights Act. Section 2 of that law says that state and local governments cannot have election systems or practices that discriminate against voters of color. In 1982, Congress amended this to provide that proof of a racially discriminatory impact is sufficient for a violation of Section 2; there does not have to be proof discriminatory intent.

After the 2020 census, Louisiana, like almost every state, redrew its congressional districts. The new districts, adopted by the Louisiana legislature in 2022, had one district with a population that was majority Black individuals out of six congressional districts in the state. In Louisiana, about a third of the population is Black. A three-judge federal district court found this to violate Section 2 of the Voting Rights Act because of the racially discriminatory impact in disadvantaging Black voters.

In response to the court's decision, the Louisiana legislature in 2024 adopted new congressional districts, with two of six having majority Black individuals in their residents. A group of individuals who identified themselves as non-minority voters brought a challenge, contending that Louisiana had violated equal protection. In cases such as Shaw v. Reno (1993) and Miller v. Johnson (1995), the Court held that the government cannot use race as a predominant factor in drawing election districts unless it meets strict scrutiny. The district court ruled in favor of the plaintiffs finding that Louisiana violated equal protection, but the Supreme Court stayed the district court's order and allowed the new districts, with two majority Black districts, to be used in the 2024 elections.

Last term, the Supreme Court had briefing and oral argument on whether the district court erred in finding that Louisiana had violated the Constitution in creating two congressional districts that were majority Black individuals. The Court did not decide the case, but on June 27 asked for new briefing and arguments. That, in itself, suggests that it could be a momentous decision. Tradition is that the Court hands down decisions in argued cases by the end of June. But occasionally the Court has put cases over for reargument. It has done this before in very high-profile cases such as Brown v. Board of Education, Roe v. Wade, and Citizens United v. Federal Election Commission. Louisiana v. Callais has the potential for being such a case.

In fact, Justice Clarence Thomas dissented from the case being put over to the next term and wrote an opinion arguing that Section 2 of the Voting Rights Act is unconstitutional. He said that the Voting Rights Act and the requirements of equal protection are "in tension." Section 2 of the Voting Rights Act requires that race be considered in drawing election districts to avoid their being impermissible racially disparate impact. But under Shaw v. Reno and Miller v. Johnson, it violates equal protection for race to be used as a predominant consideration in districting. Justice Thomas left no doubt that he believes that this makes Section 2 of the Voting Rights Act unconstitutional. He stated: "These cases put the Court to a choice: It may permit patent racial gerrymandering under the auspices of §2 compliance, or it may admit that, as the Court has construed the statute, a violation of §2 is insufficient to justify a race-based remedy. That decision should be straightforward. Nevertheless, the Court demurs."

On Aug. 1, the Supreme Court directed the parties to brief and argue whether Section 2 of the Voting Rights Act is unconstitutional in allowing for disparate impact liability. The Court's order stated: "The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State's intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution."

If the Supreme Court strikes down Section 2 of the Voting Rights Act, there will be a devastating effect on voting equality in the United States. But the implications would extend beyond that. Other federal laws, such as Title VII in prohibiting employment discrimination and the Fair Housing Act of 1968 also create liability based on disparate impact. Many states have laws creating liability based on disparate impact. These, too, would be constitutionally vulnerable because avoiding disparate impact requires decision-makers to consider race.

Disparate impact liability has been crucial to fighting discrimination in areas such as voting, employment and housing. Ending disparate impact liability would be an enormous setback for civil rights in the United States.