The end of mandatory discrimination: SCOTUS limits the use of race in redistricting

When is racial discrimination forbidden, when is it allowed, and when is it mandatory?

The U.S. Supreme Court has been tackling that question for decades. In 2023, it struck down racial discrimination in college admissions that previously had been upheld as "affirmative action" to correct past racism. That case was Students for Fair Admissions Inc. v. President and Fellows of Harvard College.

In a decision handed down on Wednesday in Louisiana v. Callais, the court dealt with the use of race in political redistricting, the process of drawing boundaries for congressional districts.

Louisiana was sued over its 2022 map, newly drawn after the 2020 Census, because it included only one majority-Black congressional district instead of two. A federal judge agreed that the 2022 map violated Section 2 of the 1965 Voting Rights Act, which prohibits racial discrimination in voting.

So in 2024 the state drew a new map with a second majority-Black district as the court required, and then was sued for illegal racial gerrymandering.

So which is it? Is it illegal to draw a district on the basis of race, or not to?

The Supreme Court agreed to hear the case to answer that question.

In the opinion for the 6-3 majority, Justice Samuel Alito wrote that it was unfortunate "lower courts had sometimes applied this Court's Section 2 precedents in a way that forces states to engage in the very race-based discrimination that the Constitution forbids."

Alito wrote that the court also wanted to answer the "long-unresolved question of whether compliance with the Voting Rights Act provides a compelling reason that may justify the intentional use of race in drawing legislative districts."

"Compelling reason" is a phrase lifted from a balancing test that the Supreme Court has been applying, in a long series of landmark cases, to patch a giant hole in the post-Civil War Fourteenth Amendment.

The problem is that the Fourteenth Amendment did not ban racial discrimination. Written in 1866 and ratified in 1868, the amendment bars the states from abridging the "privileges and immunities" of U.S. citizens or denying "due process of law" or "the equal protection of the laws" to any person, but when language was proposed that also banned discrimination on the basis of race, it didn't have the votes to make it into the final draft.

"All laws, state or national, shall operate impartially and equally on all persons without regard to color or race," suggested Rep. Thaddeus Stevens of Pennsylvania.

No, said the subcommittee drafting the Fourteenth Amendment.

At about the same time, the same Congress wrote the Civil Rights Act of 1866. The draft of Section 1 declared "there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery…."

No, said the House of Representatives. That language was cut out of the bill before the final vote.

This is how segregation remained in place after the Fourteenth Amendment was ratified, along with racist laws about marriage, jury service and other social and even political rights. The right to vote, for example, was not included in the "privileges and immunities" or "equal protection" guarantees. That's why the Fifteenth Amendment, ratified in 1870, had to say this: "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."

After everyone who drafted or voted on the Fourteenth Amendment was dead, the patching began. A series of landmark cases applied the Bill of Rights, one right at a time, to the states (originally the first ten amendments only restricted the federal government). You can read the list in Justice Alito's opinion for the Court in McDonald v. Chicago, a 2010 decision that held for the first time that the Second Amendment's guarantee of the right to keep and bear arms applies to the states.

Racial segregation in schools was struck down in 1954, in the landmark Brown v. Board of Education decision. The reasoning, which contradicted every previous Supreme Court decision on segregation, cited the Fourteenth Amendment's Equal Protection Clause. That left a sticky problem of what to do about the segregated schools in Washington, D.C., because the Fourteenth Amendment applies only to the states and the District of Columbia is under federal control. This was solved by citing the Due Process Clause of the Fifth Amendment, which the Court said "could not impose a lesser duty on the federal government."

That case was Bolling v. Sharpe, decided on the same day.

In his opinion in Louisiana v. Callais, Alito described the balancing test that the court has used to decide cases that rely on an interpretation of the Fourteenth Amendment's Equal Protection Clause. "Under this standard, the government needed to assert a compelling interest that jus­tified its use of race; and if the analysis progressed beyond this point, the government had to show that its use of race was narrowly tailored to vindicate that interest," he wrote.

Long ago, the Court named this test "strict scrutiny." If a "fundamental" right is infringed by a state law, the state must show a "compelling" reason for the law, which must be "narrowly tailored" to achieve a permissible purpose.

It's unavoidably subjective. What is "compelling" to one judge may be only "rational" to another, and a "rational" reason isn't enough to justify a state law infringing a "fundamental" right, according to "strict scrutiny."

The decision in Louisiana v. Callais brought more clarity to the subject. The Court said Section 2 of the Voting Rights Act did not require Louisiana or any state to draw majority-minority districts in the absence of evidence of intentional racial discrimination in "current conditions."

This will lead to significant changes to district maps for political offices at all levels of government, as it should. Mandatory racial discrimination is a thing of the past.

Write Susan@SusanShelley.com and follow her on X @Susan_Shelley

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This story was originally published May 2, 2026 at 7:38 AM.