The following is a post from Travis Crum:

Here’s a recap of today’s oral argument in Louisiana v. Callais.

At the outset, a short summary of what Callais is about. Callais is an old-school, 1990s-style Shaw challenge. The Callais plaintiffs—a group of non-Black voters—are challenging majority-Black Congressional District 6 (CD 6) as an unconstitutional racial gerrymander. So why did Louisiana draw CD 6? For that answer, we turn to prior Section 2 litigation known as Robinson v. Ardoin. After the 2020 redistricting cycle, the Robinson plaintiffs challenged Louisiana’s congressional redistricting plan, seeking a second majority-Black district. Louisiana lost in both the district court and the Fifth Circuit. Rather than prolong the litigation to final judgment and potentially have a court-drawn map imposed, Louisiana drew a new congressional map. Instead of using the remedial district requested by the Robinson plaintiffs, Louisiana drew CD 6 as an elongated majority-Black district that stretched across the State. Louisiana’s stated reason for doing so: to protect high-value Republican incumbents, like Speaker of the House Mike Johnson.

Under Shaw, if race predominates over traditional redistricting principles, the challenged district needs to survive strict scrutiny. Once strict scrutiny is triggered, a common defense is for the State to say that it had a “strong basis in evidence” for believing that it would have been liable absent it’s use of race. Here, the Robinson litigation is Louisiana’s justification for why it would have been liable under Section 2.

The argument focused on a core tension in the case. To the extent that Louisiana’s motives for drawing an elongated CD 6 were partisan, that helps the State at the predominance stage. But if the Court gets to strict scrutiny, then the partisan motives cut against Louisiana, as CD 6 appears to no longer be remedial. Several Justices—Thomas, Kagan, Kavanaugh, Barrett, and Jackson—asked questions targeted at this tension. Granted, the bulk of the questioning focused on the back-end, strict scrutiny part of the analysis: whether the Robinson litigation was a “good reason” for thinking Louisiana was going to be liable and whether CD 6 is an appropriate remedial district.

A few key takeaways. First, no one disputes that race and the Robinson litigation were a but-for cause in the re-drawing of Louisiana’s congressional districts. But that is not the relevant inquiry. Shaw, as construed in Miller, requires that race predominate in the drawing of CD 6. And if the Court wants a narrow decision, then it will decide the case on predominance grounds.

Second, the battlelines during oral argument reverted back to the old Shaw line-up: conservative Justices skeptical of the use of race whereas liberal Justices siding with the State. Indeed, Justice Alito—and to a lesser extent Justice Gorsuch—wanted to re-litigate both Robinson and Milligan.

Third, Justice Thomas asked questions solely about Section 2 and as if his recent Alexander concurrence had never been issued—a topic that sparked some back-and-forth between Rick Pildes and me on the blog over the past few days (see here, here, and here). But unless Thomas is going to tear up that concurring opinion, he will deem the Callais plaintiffs’ challenge a non-justiciable political question, thus providing a vote for Louisiana.

Fourth, there was a lot of discussion about the propriety of a State following federal court orders in separate litigation. The elephant in the room was obvious: the specter of the Trump Administration defying a court order and the ongoing dispute in Judge Boasberg’s courtroom over the deportation of Venezuelan migrants to an El Salvadoran prison. In some ways, that ostensibly separate case might motivate some of the institutionalist Justices to say something on the “strong basis in evidence” standard and the importance of following presumptively valid federal court orders.

Furthermore, to the extent the conservative Justices are concerned about imposing “competing hazards of liability” on mapmakers, they should not ratchet up the requirements for the “strong basis in evidence” standard. Put differently, looking under the hood at the Robinson litigation will only encourage more Shaw challenges and force States back into court to defend their remedial redistricting plans.

Fifth, Justice Kavanaugh raised his temporal/durational questions that we saw in his SFFA and Milligan concurrences. In my view, the LDF lawyer adeptly explained why Section 2, as interpreted in Gingles, responds to current conditions. But it is also worth pointing out that Section 2 does not classify on the basis of race in the same way that affirmative action plans do. Section 2 requires only the consideration of race in the decision-making process. I wouldn’t be surprised if Kavanaugh writes a separate opinion on his temporal point even if Louisiana ultimately prevails.

So what should we expect from the Court in June? And how do we count to five? There could be some strange bedfellows and multiple opinions. As noted, Thomas’s Alexander concurrence makes him a vote for Louisiana. The three liberal Justices were clearly in Louisiana’s camp. Alito and Gorsuch will side with the Callais plaintiffs. That makes the Chief, Kavanaugh, and Barrett the swing votes. The Chief seemed skeptical of the Robinson’s plaintiff’s compactness argument about the remedial district. Setting aside his temporal questions, Kavanaugh seemed open to a partisan defense, either at the predominance stage or at the remedial part of the inquiry. Barrett appeared to be leaning toward Louisiana on its partisan gerrymandering defense. Thus, I predict that Louisiana will be able to cobble together five votes one way or another.