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Don’t Overlook Justice Clarence Thomas’ Concurrence In Racial Gerrymandering Case

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In Louisiana v. Callais, the Supreme Court struck a major blow against race-based policymaking, holding that the law protects voters from discrimination, rather than mandating that states create racial gerrymanders as an ostensible corrective to discrimination. The decision builds on a string of cases whereby the Roberts Court has distinguished itself by rightly opposing present “anti-racism” as a remedy for past racism — with potentially massive political implications.

Yet as righteous as Louisiana v. Callais is, it modifies legal precedent, rather than jettisoning it. And in a terse but provocative two-page concurrence, Justice Clarence Thomas, hearkening back to an underappreciated opinion of his from some 32 years ago, argues that to achieve constitutional colorblindness the court must go further: Instead of just rolling back racial gerrymanders, it should jettison the entire corpus of fundamentally corrupted jurisprudence that spawned the pernicious practice.

The landmark Louisiana case, and past rulings, have centered fundamentally on the court’s approach to challenges to political maps and districting schemes as racially discriminatory under Section 2 of the Voting Rights Act (VRA). The court has done so in part by developing tests concerning geography, demographic makeup, voting patterns, and the “totality of circumstances” to determine whether such maps or schemes pass legal muster — weighing disparate impact above discriminatory intent. Based on precedent and past Justice Department pressure, primarily Southern states have taken to drawing majority-minority districts — that is, racial gerrymanders purportedly benefitting minorities — to preempt challenges to their maps as dilutive and therefore discriminatory.

That is what Louisiana did in adding a second majority-minority district to its six-district political map – only for that map itself to be challenged as an unconstitutional gerrymander. The court held in Louisiana v. Callais that indeed the map was unlawful. Justice Samuel Alito, writing for the majority, found that while........

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