Earlier today, I attended the oral argument in Callais. My global takeaway is a bit more sanguine than Rick’s. When the case was set for re-argument, the new QP flagged Section 2’s constitutionality: whether it constitutes a compelling governmental interest and whether there is a temporal limit to race-based remedial redistricting. However, the conservative Justices seemed more interested in tweaking the Gingles framework than in overturning Section 2 outright. For example, in questioning NAACP LDF attorney Janai Nelson, Justices Thomas and Alito focused more on Gingles and Robinson than the constitutional question. Moreover, Nelson did not receive a question about the temporal-limit argument until she—for the second time—raised it approximately 18 minutes into her argument. This is not to say the result won’t be bad or that Section 2 as applied to redistricting won’t get the Brnovich rewrite. But as someone who also attended the oral arguments in Northwest Austin, Shelby County, and Rucho, the Callais re-argument was not catastrophic. The tea leaves are harder to read this time. Here’s some key takeaways.
First, although it might have technically been captioned as a re-argument in Louisiana v. Callais, it sounded more like a re-argument of Allen v. Milligan. The Justices and advocates spent considerable time discussing what was—and what was not—decided in Milligan. The fact that this case is a Shaw challenge was missing from large portions of the argument. Indeed, the fact that Justice Thomas repudiated Shaw claims in his 2024 Alexander concurrence went noticeably unmentioned by him or any other Justice.
Second, in a related vein, the Robinson litigation loomed large, just as in last spring’s argument. The fact that the Justices are still toying with whether the Robinson preliminary injunction was rightly decided and whether it constitutes a strong-basis-in-evidence to engage in race-based redistricting suggests (a) there’s still low stakes off-ramps and (b) that a majority disintegrated last Term rather than some pre-ordained plan to tee up the constitutional question this Term.
Third, a significant amount of time was spent discussing the U.S. Solicitor General’s proposal to incorporate partisan outcomes in the first Gingles prong, which Nick wrote about earlier. Under this re-writing of Gingles, mapmakers could say that they had the goal of creating a 7-1 Republican congressional map, a move that would effectively create a partisan gerrymandering defense to Section 2. What I found striking about the SG’s proposal is that it couched partisan interests as a traditional redistricting principle. But the Rucho Court only greenlight partisan gerrymandering claims in 2019. It strains credulity to say that blatant partisan interests is a traditional redistricting principle. Indeed, Justice Kavanaugh alluded to this wrinkle when he correctly observed that States were reluctant to raise partisan gerrymandering defenses before Rucho. And for his part, Justice Gorsuch raised hard questions about the workability of the SG’s new standard.
In my view, the SG’s partisan outcome proposal has no place as a defense in a Section 2 case. To the extent it does find its way into some compromise opinion, it would be better considered as part of the totality-of-the-circumstances analysis, rather than at the Gingles prongs. Indeed, the totality-of-the-circumstances analysis is capacious and specifically looks to the tenuousness of a mapmaker’s explanation, which could be read to include partisan goals and why a particular partisan map was chosen over others. This would put a small thumb on the scale in favor of a mapmaker’s partisan goals while not cutting valid Section 2 claims off at Gingles’s gateway.
Fourth, unsurprisingly, Justice Kavanaugh repeatedly asked questions about temporal limits to Section 2—something that Milligan did leave unresolved, as Alabama did not raise it. Here, Nelson adeptly answered these questions, both on the meta-level of whether a temporal limit is appropriate and on the nitty-gritty level of Section 2’s self-sunsetting nature. I wrote more on this point yesterday.
Fifth, as Ned Foley already flagged, several conservative Justices asked questions that assumed Boerne’s congruence and proportionality test controlled here. That is disappointing given the weak originalist case for that standard, one that Justice Scalia renounced in his 2004 Tennessee v. Lane dissent.
A final thought on the post-pandemic argument format. This was my first time seeing an oral argument in person since the pandemic, and the new format was fascinating to observe in person. That said, it is simply too long. At two-and-a-half hours, it had the runtime of long movie. The one versus three lawyer dynamic (given Louisiana’s about-face) compounded the matter, as the Justices went down the queue with four separate lawyers.
Disclosure: I filed an amicus brief in support of the Robinson appellants in Louisiana v. Callais.
