SCOTUSblog By Erwin Chemerinsky 8/27/2025
Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.
The Voting Rights Act of 1965 is one of the most important laws adopted in my lifetime. Long overdue, it substantially advanced the promise of the 15th Amendment in lessening racial discrimination in voting by, among other things, requiring federal oversight in jurisdictions that had a history of preventing people from voting based on race. But two matters pending on the Supreme Court’s docket portend potential significant changes in the law of voting rights and of civil rights more generally.
First, a recent order of the Supreme Court on Aug. 1 raises serious concerns that a crucial part of the Voting Rights Act of 1965 is in real danger of being struck down. In fact, the case, Louisiana v. Callais, to be argued on Oct. 15, could bring a radical undermining of many important federal and state civil rights laws.
For a half century, the Supreme Court has held that proving a violation of equal protection – that is, that the government has violated the Constitution by treating people who are otherwise similarly situated differently – requires a plaintiff to show that the government acted with a discriminatory purpose. Yet it is enormously difficult to do so. Rarely, any longer, do legislators express racist purposes in enacting laws. Also, social psychologists long have documented how implicit biases infect decision-making.
But statutes can provide more protection of rights and against discrimination than the Supreme Court has found in the Constitution. Many important civil rights laws do not require proof of discriminatory intent to establish a violation. Rather, they create liability when there is proof of a racially discriminatory impact – in other words, when a law or policy has a racially discriminatory effect on a particular group. For example, in 1971, the Supreme Court held that Title VII of the 1964 Civil Rights Act – which prohibits employment discrimination based on race, sex, or religion – is violated if there is proof of discriminatory impact. In 1982, Congress amended Section 2 of the Voting Rights Act – which prohibits state and local governments from having elections systems that discriminate against voters of color – so that proof of racially discriminatory impact is sufficient to establish a violation of the law.
The Trump administration has sought to undermine disparate impact liability. On April 23, President Donald Trump issued an executive order declaring that the federal government, under his administration, no longer would seek to enforce civil rights laws creating liability based on disparate impact. He stated: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The executive order directs all federal agencies to “deprioritize” enforcement of statutes and regulations that include disparate-impact liability, instructs all federal agencies to consider ways to repeal or amend regulations that impose disparate-impact liability, and requires the federal government to assess all pending investigations, lawsuits, and consent judgments that rely on a disparate-impact theory of liability and take appropriate action.
This, in itself, is a major lessening in the enforcement of federal civil rights laws. But the Supreme Court’s Aug. 1 order in Louisiana v. Callais raises the possibility of something far more drastic: the justices declaring disparate-impact liability unconstitutional. The court’s order instructed the litigants to address “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”
More:
https://www.scotusblog.com/2025/08/the-future-of-voting-rights/
