Evan Milligan, center, plaintiff in Merrill v. Milligan, an Alabama...

Evan Milligan, center, plaintiff in Merrill v. Milligan, an Alabama redistricting case, speaks with the media outside the Supreme Court in Washington, Oct. 4, 2022.  Credit: AP/Patrick Semansky

Did the U.S. Supreme Court just tip its hand on how it will rule on affirmative action this term? The court's opinion in a Voting Rights Act case decided Thursday might point the way to an old but durable compromise.

Because the lawsuits challenging race-conscious admission programs at Harvard University and the University of North Carolina have garnered so much attention, the case of Allen v. Milligan has flown a bit under the radar. The plaintiffs sued to challenge an Alabama redistricting map that created only one majority-Black congressional district (out of seven) in the state. A quarter of Alabamians are Black. The plaintiffs argued that the new map diluted minority voting power, which under proper circumstances would mean a violation of the VRA. A three-judge federal panel struck down the Alabama map, and that's the judgment a majority of the court just affirmed.

How is this related to affirmative action?

Much of the controversy surrounding the VRA over the past couple of decades has revolved around the precedents that favor the explicit use of race in drawing districts, as long as that use does not predominate. In other words, it's permissible to use race in drawing electoral districts that favor minority voters as long as it's not the most important factor.

Alabama argued that the map in question should be approved under the act because the process was entirely race blind. The state hired an expert who used software to generate millions of potential electoral maps, then used the median (apparently - although the words have different meanings, the court says "median or average") number of minority-majority districts. The state's claim was that as long as its final map "resembles" the benchmark, it is race-neutral and does not violate the law.

In an opinion by Chief Justice John Roberts, the court disagreed. If the Alabama map had the effect of diluting Black votes, wrote Roberts, the method of its construction didn't matter. Although Alabama argued that the time had come to overturn the precedents leading to this rule, the court declined to do so.

That much of Roberts' opinion was joined by four other justices, and so constituted an official opinion of the court. The key language for the affirmative action debate came in a section joined by only three. He quoted previous cases for two crucial propositions: First, that legislatures deciding whether to approve redistricting plans will "almost always be aware of racial demographics"; second, that "such race consciousness does not lead inevitably to impermissible race discrimination."

In other words, it is possible to be aware of race without relying upon it. Roberts conceded that "the line between racial predominance and racial consciousness can be difficult to discern" but, to illustrate what he had in mind, wrote approvingly of an earlier case where the plaintiffs' expert, in the course of presenting alternative electoral maps, "testified that while it was necessary for him to consider race, he also took several other factors into account, such as compactness, contiguity, and population equality."

By giving these factors equal weight, race was allowed to be a factor but did not "predominate."

Here Roberts sounds a lot like Justice Powell's famous 1978 opinion in Regents of the University of California v. Bakke, which is generally taken to hold that race may be a factor in admission as long as it is not the most important factor. The link to the affirmative action cases can hardly be clearer.

But that accounts only for four justices. Where might there be a fifth vote to support at least a limited form of racial preference in admission?

The answer is Justice Brett Kavanaugh, who accounted for the fifth vote to strike down Alabama's redistricting map, but disagreed with Roberts on the reason. He declined to join the discussion about whether race may predominate; instead, he concluded simply that the precedents were clear and stare decisis demanded that they be followed.

Kavanaugh could have stopped there. Instead, he went out of his way to address Alabama's assertion that "race-based redistricting ... exceeds Congress's remedial or preventive authority under the Fourteenth and Fifteenth Amendments" - that is, that remedial acts must always be race-blind. Kavanaugh's response was pithy: "[T]he constitutional argument presented by Alabama is not persuasive in light of the Court's precedents."

Maybe it's a stretch to take this to mean that he'll vote to uphold race-based admissions in their current form. I'm not sure. In any case, that Kavanaugh discussed this unnecessary point at all does suggest that he would defer to a congressional enactment.

Kavanaugh added a warning that the power to use race to draw electoral districts favorable to minority voters cannot last forever. Here he is echoing, I suspect intentionally, the well-known sentiment of Justice O'Connor, writing 20 years ago in the affirmative action case Grutter v. Bollinger: "We expect that 25 years from now, the use of racial preferences will no longer be necessary."

We're not quite at 25 years yet.

I admit that I could be over-reading Kavanaugh. I could be over-reading Roberts. But for now, it seems, a majority of the court isn't ready to decree that race can never be a factor in a remedy for a historical wrong.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of "Invisible: The Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster."

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