Clarence Thomas Makes a Full-Throated Case for Racial Gerrymandering

The Supreme Court’s 6–3 decision on Thursday in Alexander v. South Carolina NAACP is a devastating blow to the fight against racial gerrymandering. Justice Samuel Alito’s opinion for the conservative supermajority guts a series of precedents that guarded against racist redistricting, granting state legislatures sweeping new authority to sort their residents between districts on the basis of skin color.

And yet, as bad as Alito’s opinion was, it didn’t go far enough for Justice Clarence Thomas, who penned a solo concurrence demanding a radical move: The Supreme Court, he argued, should overrule every precedent that limits gerrymandering—including the landmark cases establishing “one person, one vote”—because it has no constitutional power to redraw maps in the first place. And he places much of the blame for the court’s allegedly illegitimate intrusion into redistricting on a surprising culprit: Brown v. Board of Education.

Brown was, of course, the 1954 decision holding that racial segregation in public education violates the equal protection clause. Many of us celebrated its 70th anniversary just last week. But Brown has always had its detractors, and Thomas has long been one of them. He has written that the decision rested on a “great flaw” by focusing on the stigma that Jim Crow inflicted on schoolchildren. He rejected Brown’s assertion that Black children suffered constitutional harm when denied access to integrated education. And he condemned the court’s ongoing efforts to remedy decades of segregation by integrating public school systems by judicial decree, decrying these integration efforts as “predicated on black inferiority.”

Thomas’ latest critique of Brown springs from a similar frustration with the Supreme Court for allegedly overstepping its constitutional role to police racial discrimination. The case at hand, Alexander, involves a South Carolina congressional district that was becoming competitive for Democrats. After the 2020 census, the GOP-controlled Legislature moved thousands of Black voters out of this district, and brought thousands of white voters into it. This population-shuffling shored up the district’s Republican lean, meeting the Legislature’s goal. Voting rights advocates sued, arguing that the redistribution of residents on the basis of race violated the 14th Amendment’s equal protection clause. A federal district court agreed and found the map unconstitutional.

On Thursday, the Supreme Court reversed the lower court, insisting that the Legislature cared about partisanship (which is allowed), not race (which is, in theory, disallowed). In the process, it effectively overturned precedent prohibiting lawmakers from using race as a proxy for partisanship in redistricting. Alito’s majority opinion also turbocharged the “presumption of legislative good faith,” better described as the presumption of white racial innocence. He directed lower courts to more or less ignore “circumstantial evidence” of racist intent when assessing these gerrymanders. The result is a new, nearly insurmountable bar for victims of racial gerrymandering: It will be virtually impossible for any plaintiff to prove that lawmakers targeted them because of their race rather than their assumed political beliefs. Legislatures may now aggressively dilute the voting power of Black communities by shifting them into districts where their votes will matter least.

For Thomas, though, this extreme holding wasn’t good enough. He wanted to go much further and disavow the court’s authority to strike down any redistricting plans, asserting that this remedy doesn’t fall under the court’s “equity power.” (That’s legalese for the solutions that courts can provide when addressing constitutional infirmities.) “The view of equity required to justify a judicial map-drawing power emerged only in the 1950s,” Thomas wrote. “The court’s impatience with the pace of desegregation caused by resistance to Brown v. Board of Education led us to approve extraordinary remedial measures.” According to Thomas, the court “took a boundless view of equitable remedies,” inventing an illegitimate new “flexible power to invent whatever new remedies may seem useful at the time.” The justice conceded, begrudgingly, that this “understanding may have justified temporary measures to overcome the widespread resistance.” (Emphasis on the word “may.”) But it also demonstrated that “extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design.”

“Redistricting remedies rest on the same questionable understanding of equitable power,” Thomas continued. If Brown was the diseased root, then the famed redistricting cases of the 1960s were the poisonous tree. In these rulings, SCOTUS outlawed malapportionment, a kind of gerrymandering that creates large population disparities between districts to lock certain groups out of political power forever. For instance, in 1960, the populations of Vermont’s House districts ranged from 38 people to 33,000 people. The vote of a resident in the smallest district counted 868 times more than that of a resident of the largest district. Many legislatures used malapportionment to dilute the votes of urban residents (who were more likely to be nonwhite), giving (white) rural voters outsized sway in the state House.

The tool was also deployed as a more direct instrument of racial discrimination. Virginia’s white supremacist Legislature, for instance, packed Black voters into a small number of districts and then spread white voters around many more districts. This tactic produced its intended result: After Brown, the Virginia Legislature voted to shut down all public schools rather than integrate them. The 21 state senators who voted for the measure represented fewer Virginians than the 17 senators who opposed it. That’s the combination of malapportionment and racial gerrymandering in action.

The Supreme Court shut down this practice by mandating “one person, one vote,” requiring districts to have roughly equal populations. And it later limited racial gerrymandering by holding that race may not “predominate” map-drawing. According to Thomas, these principles are illegitimate; the courts, he wrote on Thursday, are simply incapable of fixing radically imbalanced maps. That’s true even when lawmakers engage in explicit racial gerrymandering. The 14th Amendment mandates equal protection, and the 15th Amendment outlawed race-based voting discrimination. These were key aspects of the abolitionists’ post–Civil War effort to banish white supremacy from all levels of governance. But in Alexander, Thomas declared his view that these amendments are in fact narrow to the point of nonexistence, addressing “only matters relating to access to the ballot.” In other words, laws that expressly prevent Black citizens from the discrete act of voting are suspect. As long as a Black citizen can cast their ballot, the Constitution is satisfied. It does not matter if their vote will be meaningless in practice because of gerrymandering and malapportionment.

In Thomas’ view, Virginia’s Brown-era scheme to deny political power to Black residents would be perfectly lawful. Indeed, under his theory, a state legislature could pack every Black resident into one legislative district, then distribute white voters over the remaining 99 districts. Or a state legislature could put 100,000 Black residents into one congressional district and 10 white people into another. To Thomas, these schemes would present no constitutional infirmity, and courts could do nothing to stop them. Why? Because in his view, courts may only exercise those powers claimed by “the High Court of Chancery in England at the time of the adoption of the Constitution.” Courts did not draw maps back then, so they cannot today, either.

Thomas wrote that SCOTUS can fix its mistake by returning “political districting to the political branches, where it belongs.” But how can victims of racist redistricting prevail in the political branches when those very branches have permanently locked them out of power by making their votes count for nothing? They can’t, which is why the Supreme Court stepped in. As Thomas recognizes, Brown was intimately associated with the redistricting decisions of the 1960s: Both sought to help politically disadvantaged minorities vindicate rights that had been strangled by insidious throttling of the political process. It is no surprise that the justice views these lines of precedent as intertwined, and is willing to insult both as “extravagant” abuses of judicial power.

It’s questionable whether Thomas gets the history here correct. The post–Civil War amendments were designed to elevate Black Americans to full equality with white Americans, and there is a strong originalist argument that they actually forbid racial gerrymandering. Originalism, though, is an easy tool to manipulate: The originalist judge can demand specific, nitpicky evidence in one case, then accept broad generalization in another, all in pursuit of whatever outcome they prefer. Here, by gutting the 14th and 15th Amendments through an ultra-narrow interpretation, Thomas is telling us that he prefers a nation where state legislatures can divvy up citizens on the basis of race to create maps that openly discriminate against racial minorities. It is a vision that would horrify the abolitionists who sought to end such state-sponsored racism once and for all, as well as the justices who sought to vindicate their aims in Brown.