Renowned legal scholar and professor of constitutional law Laurence Tribe has identified concerning trends in the hardline conservative direction of the Supreme Court. While Tribe acknowledges that the recent Milligan case decision was a victory for voting rights, he cautions that it may not be enough to stave off future threats to Section 2 of the Voting Rights Act.
According to Tribe, recent developments in the Court’s conservative bloc are cause for concern. These developments include Justice Kavanaugh’s attempts to distance himself from the hard right, and the court’s apparent readiness to interpret the Equal Protection Clause as demanding blindness to race. In particular, there is a risk that Section 2 of the VRA could eventually be held unconstitutional, an outcome that was not definitively foreclosed by the Milligan decision.
Despite this, Tribe believes that the Milligan decision was a significant victory. It protects people of color at the congressional, state legislative, and local government levels, according to Ruth Greenwood, director of the Election Law Clinic at Harvard Law School. As Democracy Docket has reported, there are currently 31 pending cases in federal court that allege Section 2 claims, most of which challenge legislative redistricting plans at the state level.
Guy-Uriel Emmanuel Charles, also at Harvard Law School, notes that despite his expectations, the Milligan decision did not deviate from the status quo. Nonetheless, Charles acknowledges that lawsuits in Louisiana, Georgia, and South Carolina will continue under Section 2. Kavanaugh’s stance towards race-based redistricting leaves Charles uncertain of his and the Court’s future position on the VRA.
Ellen D. Katz, a law professor at the University of Michigan, argues that Kavanaugh has left the door open to shifting his interpretation of the VRA in future cases. Katz points out that the key element in the Milligan case was Kavanaugh’s refusal to endorse certain liberal premises underlying support for the VRA. Nevertheless, Katz suggests that Kavanaugh’s refusal to consider the authorization of race-based redistricting indefinitely may provide a potential avenue for dissenters in a later case.
Overall, the Milligan decision was a cause for celebration, but the Court’s ideological direction remains a cause for concern. With the potential that Section 2 of the VRA could eventually be deemed unconstitutional, it will be important for voting rights advocates to remain vigilant.
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