I’ve written of good reason to believe the Supreme Court is going to sap Section 2 of its power in the Louisiana v. Callais case, being argued on Wednesday. I won’t rehash those arguments here. Instead I want to ask how the Court will denude section 2 of its power to require the creation of minority opportunity districts if the Court goes in that direction.

One possibility is that the Court simply strikes down Section 2 as an impermissible race conscious remedy or, following Justice Kavanaugh’s dissent in Allen v. Milligan, by saying (as the Court said about Section 4/5 in Shelby County) that time is up because of changed conditions on the ground. (Given that Section 2 is self-sunsetting as racially polarized voting disappears, that may be a very hard argument to make.) Doing so, especially just before the mid-term elections would raise even greater disapproval of the Court from half the country. It could well spark the beginning of a new civil rights movement, aimed partly at reforming the Supreme Court.

Given how high profile it would be for the Court to strike down Section 2, and given how at least some of the Justices consider the politics of their decisions, there’s a far more likely path to achieve this same purpose without an opinion explicitly striking down Section 2—interpret Section 2 so that it has now power.

We have seen this before. Justice Alito for the Court in the Brnovich case ignored text, history, precedent, and congressional intent to interpret Section 2 outside the context of redistricting so that has had no power. As I recently discussed in a Yale Law Journal article, there has not been a single successful section 2 lawsuit outside of redistricting since the 2021 Brnovich case. Alito imposed such an absurd standard (including one that freezes voting rights advances to 1982, when Congress wrote the amended section 2) that is is essentially a dead letter outside of redistricting.

One can easily see Callais get the “Alito Treatment”—reading Section 2 acontextually and in a voter-hostile way. It might require overturning Gingles (perhaps on grounds that parts of Gingles were agreed to only by a plurality of judges, not a majority—never mind how many times the Court has treated Gingles as controlling law). The Trump Administration seems to favor that in a despicable amicus brief filed in this case—marking I believe the first time the U.S. government has sided against voting rights plaintiffs in the Supreme Court. It could be through some combination of constitutional avoidance to reread the statute so as to make it less (or not at all) race conscious and ignoring decades of precedents going the other way. I don’t know exactly what it would look like, but Brnovich shows how the Court’s conservative majority could do this in a way to try to avoid taking a political hit.

And because it’s so hard to explain technical voting rights rulings to the general public, and because it won’t be immediately clear to journalists and others that this is essentially a denuding of Section 2, the Justices just might be able to get away with it.