By Joan Biskupic Chief Supreme Court Analyst

(CNN) — After an impassioned set of arguments Wednesday over the 1965 Voting Rights Act, the question is whether Justice Brett Kavanaugh is willing to completely dismantle a law intended to ensure equal voting power for Blacks and other racial minorities.

Kavanaugh appears to be the pivotal justice in the Louisiana case, just as he was two years ago in a similar redistricting dispute from Alabama. He and Chief Justice John Roberts, who has demonstrated his own ambivalences on the VRA, worked together on a surprising compromise in 2023 that preserved the force of the landmark act.

But now as the stakes have risen, Kavanaugh’s doubts have deepened.

He questioned whether there should be time limits on the creation of “majority-minority” districts, long employed to remedy congressional district maps that diluted the voting power of Blacks and Hispanics and to give them an opportunity to elect a preferred candidate.

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

He also queried whether maps that might appear racially discriminatory may, in fact, be driven by partisan politics, not race.

Yet, Kavanaugh was wrestling with the consequences of the vote he might cast. He seized upon an assertion of NAACP Legal Defense Fund counsel Janai Nelson that the retrenchment on VRA racial remedies would be “catastrophic” for Black representation in Congress and state offices.

In speeches over the years, Kavanaugh has touted his awareness of race and said he regards his cases that address bias to be the most significant he’s written. He has also invoked Atticus Finch, the fictional, small-town Alabama lawyer fighting a racist system in “To Kill a Mockingbird.”

On Wednesday, his liberal colleagues especially picked up on themes Kavanaugh raised. It was Justice Elena Kagan who pointedly first asked Nelson what would happen “on the ground” if states were no longer required to draw Black-majority districts to correct discriminatory maps.

Lower court judges had found that the Louisiana state legislature engaged in “packing and cracking,” that is, consolidating much of the Black population, which is about one-third of the state population, into a single district, and dispersing remaining Blacks among the other five districts. Judges ordered a second majority-Black district created.

“I think the results would be pretty catastrophic,” Nelson responded to Kagan. “If we take Louisiana as one example, every congressional member who is Black was elected from a VRA opportunity district. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act.”

Kavanaugh followed up when Louisiana state Solicitor General Benjamin Aguinaga was at the lectern, asking if the “results would be terrible?”

Aguinaga skirted the racial issue, highlighted the politics of redistricting, and said, “I think there’s been a lot of sky-is-falling rhetoric from the other side in this case.”

Should there be a time limit?

Wednesday’s case presents the greatest challenge to the Voting Rights Act in more than a decade. At issue is a key part of the law, known as Section 2, which prohibits practices that give Blacks and other racial minorities less opportunity than Whites to elect their preferred candidates.

In 2013, the justices, led by Roberts, undermined a separate section of the law that had required states and localities with a history of discrimination to pre-clear with the US Justice Department any electoral changes, such as new voter ID requirements.

The new case arises against the backdrop of off-year redistricting and partisan gerrymandering across the country as President Donald Trump and the GOP try to shore up their slim majority in the US House of Representatives ahead of the 2026 midterm elections.

The justices first heard the Louisiana dispute during the 2024-25 session but failed to resolve it when the term ended in June. The justices then ordered a re-argument and expanded the legal question to directly test whether Voting Rights Act remedies tied to race violate the Constitution’s guarantee of equal protection.

That is the assertion of a group of White voters in the state who’ve challenged the second Black-majority district as an unconstitutional racial gerrymander.

They were once opposed by Louisiana officials, who defended the redistricting in the first airing of the case. But the state now insists, as it wrote in its brief to the court, “race-based redistricting is fundamentally contrary to our Constitution.”

Aguinaga on Wednesday argued the state tried to fight the original finding of a Voting Rights Act violation with its original 2022 single-Black-district map and that it had been pressured to add the second majority-Black district.

“The race-based redistricting that you’re now objecting to,” Kagan interjected, “is redistricting designed to remedy a specific, identified, proved violation of law … That’s the way in which the race-based districting is coming in. It’s coming in as a remedy for specific, proved discrimination on the State’s part.”

Nelson had similarly emphasized the specific nature of the VRA’s race-based remedy as she addressed Kavanaugh’s repeated questions about time limits. At one point, however, she offered a concession, drawing from the context of race-conscious college admissions and Justice Sandra Day O’Connor’s 2003 opinion in Grutter v. Bollinger.

“Is there anything you can point us to that would not allow it to extend forever, the intentional use of race…?” Kavanaugh asked.

“Well, we maintain that there does not need to be a durational limit, but there is some guidance that this Court could consider,” Nelson replied. “So, for example, in Grutter, the Court, Justice O’Connor suggested that affirmative action did not need to endure beyond another 25 years. … (T)hat is the type of guidance I think this Court should consider if it feels that it must pursue a durational limit on Section 2.”

(The Supreme Court ended up reversing O’Connor’s decision on campus affirmative action in June 2023’s Students for Fair Admissions v. Harvard.)

When the Louisiana case was argued on the first round, last March, Kavanaugh referred to the court’s end to race-conscious admissions as an example of a relevant “durational” limit.

During Wednesday’s arguments, Nelson tried to turn the court’s decision in that case to an advantage, noting that the same month the court rejected racial policies in the context of higher education, it upheld racial redistricting in the Alabama case of Allen v. Milligan.

“It is illogical to think that this Court issued the SFFA decision and Milligan in the same term, in the same month even, and somehow those cases work at cross-purposes with one another,” she said. “So, in our view, it is very clear that the case law … before this Court supports the use of race as needed once there has been a showing of specified discrimination.”

Make it tougher to find violations?

The Trump administration has entered the Louisiana case, urging the justices to scale back the reach of the Voting Rights Act.

Kavanaugh expressed interest in a position put forward by the US Justice Department that would toughen the test for finding a Voting Rights Act violation, if political considerations, rather than racial bias, had led to a state’s refusal to create a Black-majority district.

When Kavanaugh questioned Deputy US Solicitor General Hashim Mooppan, he called the possibility that states would stress “political objectives” as they defended their maps a “real innovation.”

And that line of thinking was the basis for Kavanaugh’s first query put to Nelson, questioning whether the court might rule that voters bringing a lawsuit under the VRA’s Section 2 “cannot claim a lack of equal openness where politics, rather than race, is the likely reason for the State’s refusal to create a majority-minority district.”

“That suggestion would swallow Section 2 whole,” Nelson responded. “As I said, party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process.”

Kavanaugh dropped that line of questioning with Nelson. And as he then pivoted to his focus on a time limit for an essential VRA remedy, he downplayed the sweep of an adverse court decision, telling her, “I don’t think it’s the statute. It’s the particular application of the statute that entails the intentional deliberate use of race to sort people into different districts.”

Without the remedy, however, there would be little left of the statute.

The-CNN-Wire
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