Twenty five hundred years ago. the Greek philosopher Aristotle studied law. He concluded, in his book Rhetoric*, that text could not anticipate every cirumstance presented. The concept of equity recognized that principles of fairness could, in certain cirumstances, override text.
In the Anglo-American tradition the courts of equity have demonstrated flexibility in cases where the written law is inadequate. The beneficiaries were often the weak: women, children, the disabled. Our Constitution, in Article III, recognizes the two great divisions in the English tradition.
In the latest attack on minority voting strength - Louisiana v. Callais - the Supreme Court heard the argument of objectors to the remapping of Congressional Districts in Louisiana to afford the 30% Black citizens of Louisiana a second Black majority district of the State's nine. The argument of the objectors can be summed up in one sentence cited by Howard Law professor and former NAACP G.C. Sherrilyn Ifill. She writes that in the view of the objectors to the Voting Rights Act remedy:
The only way to stop discrimination against Black voters is to stop discriminating against white voters in remedying the initial violation.
This case is about appeasing white voters, and nothing else.
Section 2 of the 1965 Voting Rights Act is result-oriented: it looks to whether political processes have produced a circumstance (such as by `gerrymandering') in which elections "are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice"
The provision met with a predictably hostile reception yesterday in the United States Supreme Court. As long-time Supreme Court observer Amy Howe concluded, the Supreme Court appears ready to gut the 1965 Voting Rights Act - Scotusblog.
In the law we generally consider classifcation by race to be arbitrary - i.e. without ground in reason - because we hold that "all men are created equal". But in certain circumstances the Supreme Court majority has recognized that the fact of racial bloc voting has created representation that leaves one group under-represented. See Allen v. Milligan (2022) "
In Allen Associate Justice Brett Kavanaugh , observed that "the text of §2 establishes an effects test, not an intent test". But he seemed yesterday to be prepared to abandon Allen, saying at oral argument "[T]his 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 … they should not be indefinite and should have a[n] end point.”
It is remarkable that those who found the racially gerrymandered districting unobjectionable now assert that colorblindness bars the remedial devices that make our elected representative bodies more reflective of our actual social divisions than ever before. We cannot, by a hand wave, eliminate the effrects of centuries of open racial discrimination. It takes race and ethnic awareness to assure that our multi-racial, multi-ethnic nation is reflected broadly in our governing bodies.
- GWC
* "Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if that held good always which in fact only holds good usually." Aristotle- Rhetoric - Book I, para 13
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