The Supreme Court’s War on the Voting Rights Act Is Almost Over

The Supreme Court upheld a lower-court ruling in 2023 that required Alabama to create a second majority-Black district, ruling that it was the proper application of the court’s precedents. At the same time, Kavanaugh signaled in his concurring opinion that he would be willing to hear a case in the future on whether Section 2’s remedies were themselves unconstitutional. He suggested that “even if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

This “temporal argument” is a familiar one for the conservative justices, who have used it to roll back other portions of the Voting Rights Act and to abolish race-conscious admissions programs in higher education. As I noted in July, most of the justices appear reluctant to say outright that such measures would have been unconstitutional all along, perhaps because it could be taken as a vindication of Jim Crow. Instead they have argued that these laws and measures were always on a ticking clock, winding down to their inevitable obsolescence, and the timer is now beeping.

“This court’s cases, in a variety of contexts, have said that race-based remedies are permissible for a period of time—sometimes for a long period of time, decades, in some cases—but that they should not be indefinite and should have an end point,” Justice Brett Kavanaugh claimed at one point.