Callais, originalism, and stare decisis

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

Justice Amy Coney Barrett’s new book, Listening to the Law, is an excellent read. I’ve strongly recommended it to my students and agree with Will Baude that it’s the best “single book” right now “to give to any lay person who wanted to understand the Court.” (I’m looking forward to reading Justice Anthony Kennedy’s book for comparison.)

In her book, Barrett makes a cogent case for originalism as the correct method of constitutional interpretation. In her view, originalism is required given the premise that the constitutional text is binding law. Quoting Professor Steven Smith, she writes: “what counts as law—as valid, enforceable law—is what human beings enact, and that the meaning of that law is what those human beings understood it to be.” Adding her own words to amplify the point, she asserts that because “the Constitution’s enacted text is law,” its words must be interpreted according to “the meaning of the language that the lawmakers employed—not [according to] the perspective of some other lens.”

Barrett’s defense of originalism is certainly a plausible position. I don’t think, however, it’s the only plausible position. Even starting from the same premise that the words of the Constitution are binding law, as she does, I think it is also defensible to argue that the meaning of the words to be ascertained by judges is not what its authors understood them to be (what originalists like Justice Barrett call “original public meaning” of the enacted language) – but instead what Americans today understand them to be (what we can call “contemporary public meaning” of the enacted language). But that debate is for another occasion. Today, I want to accept Barrett’s proposition that originalism is the correct way to interpret the Constitution and consider the implication of that proposition for one of the most important cases on the court’s docket this year: Louisiana v. Callais.

As a brief refresher (since I wrote about other aspects of the case previously and a detailed SCOTUSblog preview is available), Callais involves a constitutional challenge to a majority-Black congressional district that Louisiana created to avoid a violation of the Voting Rights Act. The Supreme Court ordered reargument of the case, to be held Wednesday, after failing to reach a decision last term. For the second round of briefs, the court specifically asked the parties to address “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments.”

The constitutional challenge to Louisiana’s second majority-Black district is based on a line of cases that started with 1993’s Shaw v. Reno. In Shaw, North Carolina had drawn a district that, in the view of the Supreme Court majority, could not be “understood as anything other than an effort to separate voters into different districts on the basis of race” and accordingly violated the equal protection clause of the 14th Amendment unless it could survive strict scrutiny (which in a subsequent ruling the court said it couldn’t).

Although the court’s opinion in Shaw focused on the “bizarre” shape of the district at issue there, in subsequent cases the Shaw doctrine has evolved to render districts unconstitutional whenever race “predominates” in their drawing in a way that cannot satisfy the high bar of strict scrutiny – that is, it must be necessary to achieve a compelling purpose. In other words, it no longer matters whether the shape of the district is irregular if there is other evidence that racial motivations “predominated” in drawing the district’s boundaries.

Whatever one thinks of the Shaw doctrine, intellectual honesty requires acknowledging that it has nothing to do with the original public meaning of the 14th Amendment. The amendment’s decree that no state “deny to any person within its jurisdiction the equal protection of the laws” was not understood at the time these words were enacted to constrain how states conduct their elections. We know this for two simple reasons. First, everyone at the time knew it was necessary to add the 15th Amendment to the Constitution two years later to prohibit states from denying or abridging the right to vote “on account of race”; thus, the prohibition against the denial of “equal protection of the laws” did not bar racial discrimination with respect to voting rights. Nor, indeed, did it bar sex discrimination with respect to voting rights; the 19th Amendment was necessary for that, even though women are obviously “persons” protected against the denial of “equal protection of the laws” by the Fourteenth Amendment.

Second, and even more fundamentally, the second section of the 14th Amendment itself confirms that the equal protection clause in the amendment’s first section does not constrain how states regulate elections. Section two of the amendment explicitly contemplates that states will deny or abridge “the right to vote” to a portion of their “male inhabitants … being twenty-one years of age, and citizens of the United States”; when they do for any reason other than “participation in rebellion, or other crime,” the consequence is that the state will lose congressional seats “in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” In other words, the 14th Amendment does not bar states from restricting voting rights based on race, but if a state does so, then the 14th Amendment requires a corresponding reduction of the state’s representation in the federal House of Representatives.

Indeed, the court in Shaw never attempted to defend its “equal protection” ruling on originalist grounds. Justice Sandra Day O’Connor, who wrote the court’s opinion in Shaw, was not an avowed originalist in the way that Barrett is. Rather, Shaw was a judicial exercise of constitutional policymaking of precisely the kind that originalists abhor. O’Connor and the rest of the five-member majority of the court in Shaw saw race-based districting as “pos[ing] the risk of lasting harm to our society” and thus to be condemned. That form of reasoning is, most emphatically, not originalist constitutional interpretation.

Perhaps, we may ask whether the Shaw line of cases can be reconstructed as an originalist interpretation of the 15th Amendment, rather than the 14th Amendment’s “equal protection” clause? No, this won’t work for a different reason. A Shaw claim, it is imperative to understand, does not involve any allegation of vote dilution or the diminution of voting rights or power for any individual or group, as is contemplated by this amendment. Instead, it is purely a claim that the government put citizens of one race into one district and citizens of another race in another district, and that fact alone is unconstitutional even if it doesn’t affect the equality of any voter’s electoral participation.

The court in Shaw was abundantly clear on this point, observing: “In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally ‘diluted’ white voting strength. They did not even claim to be white. Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a ‘color-blind’ electoral process.”

But let us look at the exact words of the 15th Amendment. The text of the 15th Amendment provides: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Let’s stipulate for sake of discussion that the original public meaning of these words extends to matters of districting such that vote dilution claims would be cognizable as 15th Amendment violations. An alternative understanding of the amendment’s original public meaning is that the terms “denied or abridged” apply exclusively to impediments to an individual’s ability to cast a ballot, like a literacy test, in which case challenges to districting would be entirely off limits as 15th Amendment claims.

The point is that it’s plausible to claim that the 15th Amendment, properly interpreted according to original public meaning, doesn’t have anything to do with districting at all but only an individual voter’s ability to cast a ballot. On this view, Shaw is completely a non-starter as a matter of the amendment’s original public meaning. But I’m also making a second claim: Even accepting that the original public meaning of the 15th Amendment might extend to vote dilution claims with respect to districting, based on an argument that vote dilution “abridges” the right to vote, it is still not possible to claim that the original public meaning of the amendment justifies Shaw. This is because Shaw doesn’t involve vote dilution and involves no electoral infringement whatsoever to any individual voter, and is therefore outside even the furthest reaches of what the 15th Amendment by its terms prohibits.

Thus, even assuming that the 15th Amendment prohibits vote dilution, it is utterly untenable to contend that the amendment’s text encompasses claims that a district’s boundaries are invalid when they in no way “deny or abridge” any citizen’s “right to vote” but simply cause offense by separating voters into different districts on the basis of race. Other non-originalist methods of constitutional interpretation could be employed to extend the 15th Amendment’s reach to cover this distinctive type of Shaw claim that involves no vote dilution or curtailment of voting rights, but fidelity to the original public meaning of the Fifteenth Amendment’s text cannot possibly yield that interpretation.

Even accepting originalism as the correct method of constitutional interpretation, the Supreme Court cannot confine itself to originalism in its consideration of the Shaw claim in Callais. Shaw along with its whole line of progeny is precedent, after all, and the doctrine of stare decisis requires adherence to precedent absent an adequate reason for overruling prior decisions. The mere fact that those precedents may rest on erroneous interpretations of the Constitution is not a good enough reason to overrule them; otherwise, the doctrine of stare decisis would be meaningless, doing no work in letting precedents stand undisturbed without need for reconsideration.

A good originalist, as Barrett herself has explained, can also accept the doctrine of stare decisis. On this view, originalism is the method of constitutional interpretation to employ whenever there is no precedent already answering the relevant constitutional question, but when such precedent exists the originalist defers to precedent’s resolution of the question unless the doctrine of stare decisis calls for its reconsideration. The doctrine of stare decisis therefore may protect the Shaw line of cases from being reconsidered in Callais on originalist grounds.

The problem with this possibility is that among the main reasons for reconsidering a precedent within the doctrine of stare decisis is that it has become unworkable or proved inconsistent with another body of law. And this is the situation here. The difficulties of applying the “racial predominance” test are notorious, as any election law specialist will say. (Just compare the court’s decisions in Easley v. Cromartie and Cooper v. Harris, for example – but don’t, unless you want to give yourself a splitting headache!)

What is worse, the Shaw “racial predominance” doctrine makes it difficult to enforce the “vote dilution” jurisprudence that has developed in enforcing Section 2 of the Voting Rights Act. There is a well-known tension between the Shaw line of cases and a different line of cases starting with Thornburg v. Gingles that implement Section 2 of the VRA as amended by Congress in 1982. The reason for this tension is that the most obvious way to remedy or avoid congressional districting that causes the dilution of a racial minority’s voting power is to draw districts with the specific aim of enhancing that racial minority’s voting power, but drawing districts with this aim is to implicate the Shaw doctrine’s strict scrutiny of districts for which race predominated in drawing their boundaries.

This tension, which has been described as forcing states to steer between the Scylla and Charybdis of election law, lies at the heart of Callais. The challengers to Louisiana’s districting want the Supreme Court to resolve that tension by cutting back Thornburg v. Gingles and the capacity to enforce Section 2 of the VRA as Congress amended it. But that is not how a good originalist would resolve the tension between the two lines of precedent under the doctrine of stare decisis. Instead, a good originalist would conclude that this tension requires the court to reconsider the Shaw doctrine and then ultimately to jettison that doctrine as incompatible with fidelity to the original public meaning of the relevant constitutional texts in the 14th and 15th Amendments, thereby resolving the tension between the two lines of precedent in favor of retaining the power of Congress to make vote dilution claims actionable in the way that it did in its 1982 amendment to section 2 of the VRA.

A good originalist would also believe that Congress itself has the power to amend the VRA again, if it wishes, so that Shaw-type racially motivated districting is a violation of federal statutory law. But unless and until Congress enacts a statute to outlaw Shaw-type racially motivated districting, it is contrary to originalism for the Supreme Court to invent this Shaw-type claim and then use it to curtail the power that the Constitution explicitly gives Congress to determine the means for enforcing the 15th Amendment. As Barrett herself has said, it is the job of the originalist to implement the law, including the Constitution as the supreme law, as it actually is and not how the originalist would wish the law to be.

From reading Barrett’s book, one gets the impression that she approaches her role on the Supreme Court with great “integrity,” as Will Baude has observed. One thus hopes that she will deliberate on the issues in Callais with the intellectual honesty to which she aspires – and will convince her colleagues on the court to do so as well. At the very least, given what she has written, one can reasonably expect that she will grapple with the issues of originalism and the doctrine of stare decisis applicable in Callais as examined in this essay (and developed in much greater length in an amicus brief submitted by my fellow election law scholar Travis Crum). It will be most disappointing if the court, as well as Barrett herself, fails in Callais to live up to the standard she set forth in her superb book.