Yup, there it is (via Hansi Lo Wang):
[The Supreme Court’s affirmative action decision in] SFFA has considerably altered the landscape of cases, such as this one, that involve state action requiring racial classifications. 2023 WL 4239254, at *12 (“Eliminating racial discrimination means eliminating all of it.”). Indeed, the SFFA Court made clear that as statutes requiring race-based classification achieve their intended ends, they will necessarily become obsolete. See id. at *14–21 (explaining that Grutter v. Bollinger, 539 U. S. 306 (2003), “made clear that race-based admissions programs eventually had to end” and that the instant facts demonstrated that the time had come). And we have seen similarly once-permissible racial classifications be held unconstitutional when the facts justifying their existence were no more—specifically in the Voting Rights Act (“VRA”) context. See Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (holding part of the VRA unconstitutional because “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions”). Consequently, the district court should be permitted to address, in the first instance, whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary. See id. at 536 (“[C]urrent burdens . . . must be justified by current needs.” (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009))).
Notably, this temporal argument was acknowledged by members of the Milligan Court but, because it was not properly raised, the Court did not consider it. 143 S. Ct. at 1519 (Kavanaugh, J., concurring) (“Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 1543–1544 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”). Indeed, eight Justices in Milligan appeared to conclude that the first Gingles precondition cannot be satisfied where race is the predominant factor in the creation of an illustrative comparator. See 143 S. Ct. at 1510–12; id. at 1527 (Thomas, J., dissenting). That predominance test is essential to mitigate the problem of race-based classifications identified in SFFA, and the district court should address the interplay of these decisions, as applied to this case, in the first instance on remand.
As I wrote recently at Slate:
The first attack is a separate constitutional one from the one that failed in Milligan. In Roberts’ Milligan majority opinion, the court upheld Section 2’s constitutionality against Alabama’s claim that Congress only has the power to ban intentional discrimination, not just those voting laws with discriminatory effects. Citing earlier precedents, the court concluded that Congress had the power through the 15th Amendment to dismantle laws with racially discriminatory effects as well.
Despite that holding, Justice Kavanaugh, writing separately, left the door open for a future constitutional challenge. Kavanaugh described that argument, raised by Justice Clarence Thomas in his dissent, that “even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Kavanaugh wouldn’t reach the question in his separate opinion, but left it open: “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
This argument that a law once constitutional is no longer so because of the passage of time echoes the court’s 2013 decision in Shelby County v. Holder, authored by Chief Justice Roberts, reaching the same conclusion about a different part of the Voting Rights Act, Section 5. As voting rights expert Ellen Katz opined on my site, the Election Law Blog, “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.”
Would Kavanaugh (or even Roberts) switch back again and pull a Shelby County in a few years? It is hard to say, but Roberts at least offered a surprisingly full-throated endorsement of current Section 2 jurisprudence, and having pronounced Section 2 constitutional without alluding to or even citing the argument in Shelby County that the passage of time could render the law now unconstitutional, it seems hard to imagine him reversing course so soon. What Kavanaugh might do should such an opportunity arise is a separate question, of course.