Emerging from the pattern of unanimity, or near unanimity, that has characterized most of the cases decided so far this term, the Supreme Court decided one of its most eagerly awaited and controversial cases.And the outcome of the case will confound the predictions of many voting-rights analysts and critics of the Court and its Chief Justice.The case isAllen v. Milligan, and, in a 5-4 opinion written by the Chief Justice, and joined by Justices Sotomayor, Kagan, and Jackson, and, most significantly, by Justice Kavanaugh, the Court held that a districting plan adopted by the State of Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act, 52 U. S. C. §10301. I think it is fair to say that, following the oral argument of the case, most liberal commentators expected significant further erosion of Section 2, and most politically, if not jurisprudentially, conservative observers were licking their lips. Each side has been surprised.In a lengthy and detailed narration of legislative history, unusual for a conservative textualist, the Chief Justice began by recalling that, inCity of Mobile v. Bolden, 446 U. S. 55 (1980), the Court held that the Fifteenth Amendment—and thus Section 2 from which it is derived—prohibits states from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate, but it did not prohibit laws that are discriminatory only in effect. In the wake of substantial public criticism that this interpretation did not adequately protect individual voting rights, Congress passed a compromise amendment to Section 2 that incorporated both an effects testanda disclaimer that “nothing” in Section 2 “es

Footnotes:Executive Order on Promoting Access to Voting, The White House (March 7, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/07/executive-order-on-promoting-access-to-voting/.Id.Id.Id.570 U.S. 529 (2013). Id. at 557.Id.52 U.S.C. § 10301(a).

To establish a Section 2 claim, the plaintiffs must show, among other things, that members of a racial minority “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” See 52 U.S.C. § 10301. After a six-day bench trial, the trial court found that (1) the NAACP had proved the preconditions for a section 2 claim and (2) the totality of the circumstances indicated that the district’s African-American voters had less opportunity to elect their preferred candidate than other members of the electorate.