This is a guest post from Ellen Katz:

Much of Allen’s significance may lie in the small section of the Chief Justice ’s opinion that Justice Kavanaugh refused to join, and the final point Justice Kavanaugh offered in his separate opinion. More specifically, Justice Kavanaugh did not sign on to the portion of the Chief Justice’s opinion in which he wrote that being aware of racial considerations in redistricting differs from being motivated by them, that only the latter is prohibited in the redistricting process, and that race does not predominate simply because plaintiffs present illustrative maps created— “as our cases require”—to show that an additional majority-minority district could be drawn. Far from running afoul of statutory or constitutional constraints, consideration of race in this manner—and presumably subsequently by the State in response to the submitted maps and judicial rulings about them— simply shows the Section 2 regime to be operating as Congress intended and precedent allows. The Chief Justice stated bluntly: “That is the whole point of the enterprise.”

The Chief Justice’s embrace of these ideas is, without doubt, noteworthy given previous statements he has made about the role of racial considerations in the redistricting process and beyond. One can debate the extent to which the discussion Chief Justice Roberts offers in Allen reflects a change in his substantive views, or whether it is instead the changed composition of the Court that makes his various claims in Allen appear noteworthy. (Supporting the latter is the fact that, on one view, Allen simply affirms a ruling the lower court deemed not “close,” based on decades of settled precedent, and that holding otherwise would have required substantial reworking of existing law.)

But what is both odd, and, no doubt, consequential is why Justice Kavanaugh refused to sign on to this portion of the opinion. He was, after all, willing to sign on to the rest of the Chief Justice’s opinion. He agreed that the district court was correct that the plaintiffs were likely to succeed on their Section 2 claim. He agreed with the underlying interpretations of the statute and applicable precedent that the Chief Justice discussed as supporting that ruling. He also, critically, agreed with the portion of Chief Justice Roberts’ opinion which flatly rejected the notion that Section 2, so construed, violates the Fifteenth Amendment or otherwise exceeds Congress’s constitutional enforcement powers. This all signals that Justice Kavanaugh thinks that Alabama must redraw its map, and that, in so doing, it must consider race to the extent needed to draw a second Black majority district along the lines suggested by the plaintiffs’ illustrative maps.

Put differently, Justice Kavanaugh does not appear to disagree with anything the Chief Justice said in the portion of the opinion he refused to join. He agreed that, under established precedent, race can be constitutionally considered so long as it does not predominate; and he agreed that the way plaintiffs relied ­­­­­­on race in developing and presenting their illustrative maps was a routine part of this established “enterprise.” He nevertheless refused to provide the fifth vote (and hence refused to provide a Court) for this articulation of foundational principles underlying the analysis he joined.

Part of the reason may have been Justice Kavanaugh’s concern about the implications that so doing might have in other cases, most notably in the pending affirmative action cases. Another likely reason may have been to create space for future rulings in this very arena. The Chief Justice may have gotten the law right, but that does not mean Justice Kavanaugh has to be happy about it. He was not willing to overrule Gingles—that’s for Congress to do, if only it was so inclined—and he was not willing to strike down the statute entirely based on constitutional arguments the Court had previously rejected. But he waswilling to invite further litigation. The “temporal argument” posits that, like Section 5, which was rendered inoperative in Shelby County, Section 2 was constitutional when enacted but might not be going forward. After all, Justice Kavanaugh maintained, the authorization of “race-based redistricting” under the “statute cannot extend indefinitely into the future.” Justice Kavanaugh said he was declining to consider this argument “at this time” because Alabama had failed to press it. But the invitation was, of course, clear: bring this claim and the Allen dissenters might just have a majority in the next case. 

In other words, stay tuned.