In the eyes of many, Shelby County is one of the nadirs of the Roberts Court: an ignominious decision that tore out the heart of the Voting Rights Act. But that’s not Justice Kavanaugh’s view. As he suggested in his concurrence in Milligan—and repeated over and over in Monday’s oral argument in Callais—he wants to rerun the Shelby County playbook, only this time to nullify Section 2 of the VRA, not Section 5. Is there “a durational limit on the authority of Section 2,” he asked Louisiana’s lawyer? “[R]ace-based remedial action must have a logical end point,” he told the appellants’ attorney. “The authority of a state to engage in race-based redistricting must have an end point,” he reiterated to the appellees’ advocate.

In light of Justice Kavanaugh’s preoccupation with this issue, it’s worth elaborating why Shelby County’s reasoning about the obsolescence of Section 5—even if that logic were correct—is inapplicable to Section 2. First, and most importantly, Section 2 doesn’t refer to old election results and defunct electoral practices. According to the majority in Shelby County, the fatal flaw of the VRA’s coverage formula was that it was “based on decades-old data and eradicated practices.” Section 2 simply doesn’t share this supposed flaw. Nothing in a Section 2 case hinges on “literacy tests and low voter registration and turnout in the 1960s and early 1970s.” Nothing in a Section 2 case hinges on any particular data or practices from the distant past.

Second, the Gingles framework for Section 2 vote dilution claims already includes “durational limit[s]” and “logical end point[s]”—exactly what Justice Kavanaugh says he wants. To satisfy the first Gingles prong, a minority population must be “geographically compact.” This requirement isn’t satisfied in “substantially integrated” areas, where minority members are interspersed with other residents. Critically, more parts of the country are becoming residentially integrated. As I’ve explored in prior work, residential segregation has been consistently declining for roughly half a century. This trend has already made it impossible to satisfy the first Gingles prong in some places. Assuming the trend continues, it will further curb the reach of Section 2.

Similarly, the second and third Gingles prongs both relate to racial polarization in voting. And racially polarized voting both fell sharply in the 2024 election and was already low in many areas, especially in the Northeast and West. So these elements, too, are growing harder for Section 2 plaintiffs to establish in many cases. If 2024 is the new norm, Latino voters, in particular—who split nearly down the middle between Trump and Harris—will be unable to prove racially polarized voting in large swaths of the country.

Third, in Shelby County, the Court could plausibly argue that “things have changed dramatically” since 1965. But Section 2 took its current form (including the effects test that the Gingles framework operationalized) in 1982, not 1965. And relative to the baseline of 1982, the present doesn’t look all that different. With the exception of 2024 (and, to a lesser extent, 2020), racially polarized voting has been roughly constant since 1982. As a recent Brennan Center report shows, the racial gap in turnout between minority voters and white voters has grown over the last two decades. Racial vote dilution remains common across the country thanks to gerrymandered districts and at-large electoral systems. And racial vote suppression is a much worse problem today than in the 1980s, a decade when few states intentionally tried to limit minority turnout.

Finally, unlike Section 5, Section 2 is a fairly typical antidiscrimination provision. It doesn’t apply to only a subset of states, and it doesn’t rely on the extraordinary remedy of preclearance. As the majority in Shelby County acknowledged, Section 2 is simply a “permanent, nationwide ban on racial discrimination in voting,” which the Court’s decision “in no way affects.” If Section 2 is actually vulnerable to the same kind of attack as Section 5, then so should be myriad other antidiscrimination statutes, including Title VII, the Fair Housing Act, the Equal Credit Opportunity Act, and the Equal Educational Opportunities Act. After all, these laws were also passed decades ago—notably, before the 1982 amendments to Section 2—to combat other aspects of the same evil of racial discrimination. The logic of Justice Kavanaugh’s challenge to Section 2, in other words, is impossible to cabin to that provision alone. Which is all the more reason to reject that challenge.