Sometimes the most important stuff in Supreme Court opinions is hidden in the footnotes. In Monday’s Supreme Court ruling striking down two North Carolina congressional districts as unconstitutionally influenced by race, the majority buried a doozy, a potentially powerful new tool to attack voting rights violations in the South and elsewhere. At issue in the case was whether two congressional districts drawn by the North Carolina General Assembly were unconstitutional “racial gerrymanders.” A racial gerrymander exists when race — not other criteria, such as adherence to city and county boundaries, or efforts to protect a particular political party — is the “predominant factor” in how a legislature draws lines and the legislature presents no compelling reason for paying so much attention to race.
The more interesting of the two findings involved North Carolina’s 12th Congressional District, on which the court divided 5 to 3 in upholding a lower court’s ruling that the district was a racial gerrymander. The state had defended its line-drawing on the grounds that the meandering district was constructed that way for partisan purposes. It was all about helping Republicans, North Carolina argued — not divvying up white and black voters. The Supreme Court so far has refused to strike down districts that look like partisan gerrymanders, so proving that this was about party and not about race would create a safe legal harbor for the state.
On the surface, Justice Elena Kagan’s opinion might seem relatively modest — a win for those challenging North Carolina’s districts, to be sure, but a straightforward application of established principles about deferring to the factual findings of lower-court judges. The lower court in the case had found that race was the driving factor, and Justice Clarence Thomas — a rather surprising addition to the majority — wrote a concurrence stressing that lower courts’ factual findings are entitled to considerable deference.