By: Dan McLaughlin – nationalreview.com – October 20, 2025

Different power, different limits, different structure, and different language.

A lot of observers of the Supreme Court oral argument last week in Louisiana v. Callais were taken aback by Justice Ketanji Brown Jackson’s analogy comparing black voters in Louisiana to disabled people:

So going back to this discriminatory intent point, I guess I’m thinking of it  — of the fact that remedial action absent discriminatory intent is really not a new idea in the civil rights laws, and — and my kind of paradigmatic example of this is something like the ADA. Congress passed the Americans with Disabilities Act against the backdrop of a world that was generally not accessible to people with disabilities, and so it was discriminatory in effect because these folks were not able to access these buildings. And it didn’t matter whether the person who built the building or the person who owned the building intended for them to be exclusionary. That’s irrelevant. Congress said the facilities have to be made equally open to people with disabilities if readily possible. I guess I don’t understand why that’s not what’s happening here. The idea in Section 2 is that we are responding to current-day manifestations of past and present decisions that disadvantage minorities and make it so that they don’t have equal access to the voting system, right? They’re — they’re disabled. In fact, we used the word “disabled” in [Allen v.] Milligan. We say that’s a way in which you see that these processes are not equally open. [Emphasis added]

Let’s unpack this to get past the shock value of treating black Americans as disabled and think about the analogy.

There are three big-picture questions at issue in Callais. The first is whether Congress has the power to order states to draw race-based House districts in the first place. The Constitution says nothing explicit on the topic. There are two arguable sources for such a power. One is the elections clause (Art I, Sec. 4), which allows Congress to “make or alter” state regulations of the “Times, Places and Manner of holding Elections for Senators and Representatives.” Congress can, for example, require states to elect members of Congress by single-member districts of equal size, as it did in 1842 and (after that rule lapsed in 1929) reinstated in 1967. At times, it has imposed more detailed regulations on the shapes of districts. The other is the remedial power of Congress (“The Congress shall have power to enforce this article by appropriate legislation”) in Section 2 of the 15th Amendment — a power supplementing its guarantee of equal voting rights regardless of race, and modeled on Section 5 of the 14th Amendment. As the Court held in City of Boerne v. Flores (1997), however, the remedial power (in that case, under the 14th Amendment) is limited to remedies for violations of the amendment itself. Thus, Congress can’t pass laws under the remedial power unless they target something that violates the amendment in the first place. As applied to the 15th Amendment, Congress can’t say, “this law will make it harder in some general sense to deny black people the right to vote” — it has to say, “this law punishes or fixes an actual denial of the right to vote,” or prevents such a denial in a specific and targeted way — what the Court calls a “congruence and proportionality” test. Under that test, there has to be some close tailoring between the remedy and the problem. That’s why the Court was debating whether race-based districts are limited to situations where there has been a past, intentional discrimination against black voters — and, if so, how far in the past it can go before the remedy becomes too attenuated from the problem.

The second question is whether Congress is limited in its powers to order race-based districts. The Constitution grants some powers that it elsewhere restricts. Under a line of cases going back decades, the Court has treated racial gerrymanders as a violation of the 14th Amendment’s guarantee of equal protection from race discrimination. As a result, regardless of what power Congress cites as the source of its authority in this area, it has to pass strict scrutiny in showing that the use of race is necessary to remedy prior discrimination. That was the reasoning of the Court when it found that race discrimination had gone on too long in college admissions. It’s similar to the argument in Shelby County v. Holder, where it found that subjecting state lawmaking to Justice Department preapproval violates the federalist design of the Constitution; Congress could use a device such as preclearance to put a state’s legislature into a sort of receivership, but it can’t do so permanently without regularly revisiting the basis for doing so. Even Reconstruction only continued for a decade after states actually rebelled against the federal government. Whether time is up for race-based redistricting is the question raised by Justice Brett Kavanaugh in 2023 while upholding such districts at the time, and answering Kavanaugh’s inquiry — which could tip the Court from 5–4 in favor in 2023 to 5–4 against such districts in 2025–26 — is the whole reason why Callais is being reargued.

The third question is whether Congress actually has created race-based districts. Even Jackson noted that Section 2 of the Voting Rights Act, as amended in 1982, didn’t order such districts. In fact, it doesn’t mention district line-drawing at all. All it did was create a framework that courts could use to decide that a state’s voting and election system isn’t equally open to all races, and to order remedies for that. Which means that a race-based district is really supposed to be drawn only when a court has found a racially discriminatory system and that no lesser remedy will fix it. But the 1982 amendment made clear that courts are supposed to decide the openness question without regard to whether the lack of openness is intentional. Jackson’s view is that this means that a remedy can be ordered without a prior finding of intentional discrimination — but the challengers to Louisiana’s racial gerrymander argue that Congress can’t constitutionally empower such a remedy without a prior finding of intentional discrimination.

Enter the ADA analogy. Now, first of all, as I discussed at some length in an ADA case last term, a major focus of the ADA when it was passed was to prevent intentional employment discrimination based upon stereotypes about the disabled, and Jackson, in reading the ADA’s employment-discrimination rules, glossed over that purpose. But set that aside, because she’s drawing an analogy here to the ADA’s employment discrimination positions: she’s comparing race-based districts to the parts of the ADA that required buildings to add wheelchair ramps.

When you consider what questions are at issue in Callais, it should be screamingly obvious why this analogy doesn’t work. First, the power in question comes from a different place. Assuming that the ADA’s provisions on building access are constitutional — a question that hasn’t really been fully examined — they derive largely from the expansive modern reading of the Commerce Clause and Congress’s view that the exclusion of the disabled from transportation and accommodations was a problem that affected interstate commerce and should be solved through the commerce power, not just the remedial power to vindicate equal protection. Title III of the ADA, addressing physical accommodations, is closely statutorily anchored to the commerce power. That’s a different source of power with different rules from remedial powers under the 14th and 15th Amendments that are governed by City of Boerne. Second, the question of race-based remedies being limited because they discriminate on the basis of race is not at issue in building wheelchair ramps, which do not discriminate against anybody on the basis of race. Third, there’s no similar question of statutory remedies in the ADA, which spells out in fairly extensive detail what sorts of accommodations are required (e.g., “It shall be considered discrimination for a private entity which operates a fixed route system and which is not subject to section 12184 of this title to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.”). Those rules are explicitly designed to not require a judicial finding that they remedy anything — a very different structure from what Jackson acknowledges to be the way in which Section 2 of the VRA works.

So, different power, different limits, different structure, different language — what is left of the comparison between the ADA and the VRA?

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Source: Justice Jackson’s Startling Analogy in Louisiana v. Callais | National Review