I confess, I’ve found the litigation saga surrounding Callais quite complicated (including what, precisely, re-argument was supposed to accomplish, and why Justice Thomas wrote separately this summer frustrated at the prospect of re-argument), and oral argument on Wednesday didn’t really help. But there were still some notably takeaways.
My sense, like other ELB bloggers, is that some kind of limitation to Section 2, including a potential narrowing of Gingles, might be on the horizon. But the justices seemed to be talking past each other about what to do.
Justice Alito, in many respects, returned to what might be one of the narrowest paths forward. He repeatedly emphasized that the lower court failed to consider the compactness of the minority group (and here Justice Alito cited Gingles) and instead emphasized the compactness of the district. Janai Nelson pushed back against that characterization, but respondents’ arguments citing Bush v. Vera wanted to embrace it.
Justice Gorsuch turned to what Gingles and its progeny actually meant, including fleshing out when race or party “predominates.”
Justice Barrett repeatedly returned to “congruence and proportionality” and the constitutional standard for reviewing exercises of congressional power under the Reconstruction Amendments. As I wrote back in 2023 with Allen v. Milligan, I found it fairly surprising that Justice Thomas, joined by Justices Gorsuch and Barrett, embraced this standard for both 14th and 15th Amendment claims. If the question is one of congressional power, and if Section 2 as construed by Gingles might flunk that test, then some kind of limiting construction as constitutional avoidance of Gingles or of Section 2 itself might be in order, in her view. (This also ameliorates some of the “statutory stare decisis” concerns that arose–it isn’t a question of whether Gingles was right or wrong as a statutory matter, but that Gingles might have to give way to a new construction in light of constitutional concerns.) Justice Kagan pressed back late in oral argument at relying on congruence and proportionality for a statute enacted 40 years ago.
Justice Kavanaugh–the fifth vote in Allen v. Milligan–unsurprisingly kept returning to the time-bound issue he raised there. He did not seem to believe that the legal theories developed over the last two years have assuaged his concerns.
(One additional bit of trivia from Justice Kavanaugh at argument. He offered the following: “Justice Kennedy in 1994 in Johnson versus De Grandy said a couple things that I just want to get your reaction to. He said the sorting of persons with an intent to divide by reason of race raises the most serious constitutional questions, and he added that explicit race-based districting embarks us on a most dangerous course. It is necessary to bear in mind that redistricting must comply with the overriding demands of the Equal Protection Clause.” Justice Kavanaugh clerked for Justice Kennedy in the OT1993 term when Johnson v. De Grandy was decided.)
And Chief Justice Roberts seemed to emphasize that Allen v. Milligan assumed constitutional issues without deciding them–one way of construing that opinion, as I wrote back in 2023, is that it did leave open some issues. But he did not seem to offer much guidance about which way he might want to go. (Elsewhere, Hashim Mooppan openly questioned Alabama’s litigation strategy in Allen by pointing to Alabama’s failure to embrace partisanship as an alternative explanation in its map in an exchange with Justice Alito–“Alabama for whatever reason didn’t argue that incumbency protection and partisan advantage were the reasons for their map.”)
In short, then, my read is that whatever “majority” might come from the opinion is impossible to tell from oral argument. A range of views seem on the table, from a narrow clarification of Gingles that seems to spot a problem in lower this court applied it, to a broader reinterpretation of Section 2 that overturns portions of Gingles in the name of constitutional avoidance, to, well, something that puts Section 2 more squarely into constitutional question.
One more note: Justice Kagan spent a long time suggesting (consistent with Travis’s take here) that this case was really just relitigating Allen v. Milligan. It is my sense that Justice Kagan will use the opportunity to write a dissent consistent with several of her dissents in the last few years, including Alexander v. South Carolina Conference of the NAACP, to take the majority to task for its reversal of precedents, particularly recent precedent. Again, Chief Justice Roberts offered reasons why that is not the case, and Justice Kavanaugh expressly reserved judgment on an issue in Alexander that he views as properly raised here in Callais. But it’s a dissent I fully expect to see written.