I listened to this morning’s argument in Merrill v. Milligan, and live-tweeted it here. My sense is that Alabama is not likely to get the Court to adopt its radical approach to rewrite Section 2 of the Voting Rights Act as a race neutral statute, but it might get something almost as good: a reworking of the existing Gingles framework to make it much harder for minority plaintiffs to get full representation in Congressional and other legislative districts.
There did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district. That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for VRA redistricting claims, followed by a look at the totality of the circumstances.
Even Justice Alito, one of the most hostile justices to the VRA was not on board with that. He instead, however, aggressively and persistently pushed a reworking of the first of the Gingles factors in a way that would make it much harder for minority plaintiffs to prevail. It would essentially bring race neutrality in through the back door into that factor.
Justice Ketanji Brown Jackson, new to the Court, aggressively pushed back against Alito, and made very strong points about how Alito’s suggested approach is neither required by the Constitution nor in line with the text, history and precedent regarding Section 2 of the Voting Rights Act. It’s clear that Justices Kagan and Sotomayor are there with her.
Justices Barrett and Kavanaugh, and to some extent the Chief Justice, asked more of clarifying questions, and suggested they had an open mind on the question. (Recall that the Chief Justice, dissenting when a Court majority made up of the other conservative Justices put Alabama’s ruling on hold pending the hearing in this case, said that plaintiffs should win under existing law.) If one just listened to the oral argument, one might think that these Justices are up for grabs in this case. But we know from the oral argument in last year’s Brnovich case that they sounded openminded there too, but fell into line behind Justice Alito’s terrible opinion in that case. That could well happen again here. Indeed, I think that’s the most likely scenario. But it’s not certain.
Justice Thomas said little and I believe Justice Gorsuch did not ask a question (though I missed bits and pieces of argument and may have missed it). But they’ve been on record as saying that the VRA doesn’t even apply to redistricting. They are not going to be votes to help plaintiffs here.
We may not get a decision for a while. But if Justice Alito gets his way, there will be many fewer congressional districts, and state and local legislative districts, where voters of color get to elect representatives of their choice and have meaningful representation in legislative bodies.