This Is Not A Drill
On the Parallel Collapse of Democracy and Judicial Continuity
Dear Reader,
In Louisiana v. Callais, the Supreme Court subverted the Voting Rights Act to protect white supremacy. The Court did this by replacing its “‘one-person, one-vote ideal,’” with the racist colorblind ideal from SFFA v. Harvard that was distilled from Justice Powell’s standalone opinion in Regents of Univ. of Cal. v. Bakke. In effect, the Court ended Voting Rights Act litigation under Section 2 by completely inverting the Court’s previous precedents as though they always meant something opposite and inside-out from what we always thought they meant.
The joke’s on you America, Justice Alito appeared to boast in Callais as he channeled Justice Powell’s classic racism-by-ad-hocery from Bakke and other balancing test cases. The Callais opinion reads as though the one-person, one-vote principle was always a ruse. The Court’s inversion of Section 2 with SFFA’s colorblind racism was foretold in Grutter v. Bollinger and exposed as clearly racist and immoral in both Go Set A Watchman and The New Jim Crow.
To fulfill Grutter’s prophecy through SFFA, Callais subverted one-person, one-vote by deciding that racial redistricting maps cannot be justified by the compelling interest the States have in complying with Section 2. This means that Court orders to resolve racist gerrymanders are, potentially, themselves unconstitutional racial gerrymanders—a decision that appears to nullify Section 2 and the Equal Protection Clause itself as incapable of enforcement. Callais is a direct threat to Cooper v. Aaron, because it implicitly denies the constitutionality of Cooper’s enforcement of Brown v. Board of Education as, itself, unconstitutionally racist.[1]
The hypocrisy of Callais lies in its use of politics to distinguish the result of Thornburg v. Gingles by paradoxically extending and modifying Gingles. According to Callais, if Black people voted Republican and simply wanted different policies or representatives within a single party, then the result would have been different. This subverted the very policy issue the Voting Rights Act was enacted to address by appearing to premise the legal protections of Black voting power in Louisiana upon whether they’re going to vote the “right” way.
As Dobbs v. Jackson Women’s Health Org. struck down abortion rights under the Fourteenth Amendment, the Callais Court similarly decided that the Fifteenth Amendment has a limiting, rather than expanding, effect on Congress’s legislative power. This effectively transformed the work of several legal scholars suggesting that Congress could read the Fifteenth Amendment’s delegation of “power to enforce this article by appropriate legislation” into a paper tiger. As noted in previous letters written to you, this is yet another tentacle of the Leviathan shaped upon the hideous decision in the Slaughter-House Cases that decided the Thirteenth, Fourteenth, and Fifteenth Amendments are limited to the purpose of ending race-based chattel slavery.
Callais usurped the legislative power by turning the U.S. Constitution into a hatchet to limit Congress’s power to necessarily and properly administer the government. It threatens to oust McCulloch v. Maryland, that wisely expanded Congress’s power with this liberal standard:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Callais entirely ignored Chief Justice Roberts’ standalone 1-4-4 opinion from NFIB v. Sebelius, that mirrored Justice Powell’s standalone 1-4-4 opinion in Bakke. Every Justice may, in future, change their minds about their previous opinions. But, here, Chief Justice Roberts contradicted his previous opinion without seeming to realize that he had done so according the Court’s increasingly paradoxical anti-rights stance symbolized by Associate Justice Clarence Thomas.
In Dobbs, Justice Thomas, who is a Black man married to a white woman, lionized Slaughter-House via his opinion in McDonald v. Chicago as a basis for potentially revoking all substantive rights currently protected by the Supreme Court—including the right to marry interracially. The crux of Dobbs, however, was an ad hoc cost/benefit balancing test drawn from Janus v. AFSCME. The Callais Court similarly applied an ad hoc cost/benefit balancing rationale modified from Gingles to permanently distinguish Gingles in an exceedingly paradoxical fashion that appears to be modeled on Hegel’s mystical dialectic of extremes that approach the Absolute Idea.
As Bertrand Russell once remarked, in his Unpopular Essays: “Hegel’s philosophy is so odd that one would not have expected him to be able to get sane men to accept it, but he did.” Justice Alito’s paradoxical and absurd opinion in Callais provokes a similar conclusion. Yet, as Michelle Alexander elucidated in The New Jim Crow (drawing on Martin Luther King, Jr.’s Strength to Love), Callais’ embrace of judicial chaos may come from the same peculiar psychological state that the oppressors of Jesus Christ had of both knowing and not knowing what they did.
When Roe v. Wade, and several other rulings construing the constitution were destroyed by the Court through Janus’s cost/benefit balancing test, some, like Justice Kagan, took solace in the face that this toxic tranche of cases might have been distinguished from statutory precedent. For the Court had referred to its rulings about statutes as protected by a “superpowered form of stare decisis” that composed a “nearly impregnable . . . shield” that only a “superspecial justification” could overcome.[2] Justice Kagan managed to vindicate and develop this special form of stare decisis in several key cases, perhaps, culminating in Allen v. Milligan to specifically protect the Voting Rights Act.
Therefore, it was a particular blow to Kagan’s jurisprudence when the Court ended Allen’s supercharged version of stare decisis in Callais on similar arbitrary ad-hocery as Dobbs. The Court disagreeing with itself about the meaning of statutory text foolishly gives the Court’s critics a leg to stand on when they claim the Court is usurping Congress’s power by nullifying its laws.[3] After Callais, the Court’s own previous decisions can be cited to support the rising claims of the Court’s illegitimacy as the government’s only unelected branch.
If Congress and the President cannot count on the Court to consistently interpret the laws and regulations they make, they may seek to reduce the reviewing power the Court has to protect the rights of Americans. Worse, it appears that some of the more radical members of the Court itself may want to provoke the other branches to narrow their authority to protect the substantive rights the Court traditionally secured through judicial review. Following the arbitrary timeline set in Grutter,[4] many on the Court appear to actually believe that securing racial equality in America runs against the foundations of judicial review, rather than being a pillar of judicial review to address the nation’s vestiges of race-based chattel slavery.
Now that the proverbial chickens of Grutter have come home to roost, all those who claimed Shelby County v. Holder nullified the Voting Rights Act are completely vindicated. Back in 2013, the Shelby County Court seemed to suggest these critics were blowing things out of proportion as litigants could still sue under Section 2 to correct any actually deficient voting maps. Without any sense of shame, the Callais Court practically destroyed Section 2 as a basis for reviewing racist gerrymandering, solidifying the original criticism that Shelby County nullified the Voting Rights Act.
Ultimately, Callais severely weakens Cooper’s holding that requires the States and the Executive Branch to refrain from nullifying the Court’s rulings. If the States, Congress, and the President cannot count on the Court to remain consistent about its previous opinions, as Callais symbolizes, then more cases may be brought, like Whole Woman’s Health v. Jackson, to get orders that effectively nullify the Court’s previous opinions before they are even overruled. In this way, Callais improperly tempts future litigants to race to fait accompli in the shadow docket rather than helping the Court develop the law in the merits docket.
As I, perhaps too gently, noted in previous scholarship regarding Dobbs,[5] Justice Kagan’s apparent hope to distinguish Dobbs away through Allen and its predecessors was always a pipe dream. In Janus, and its progeny, the Court already demolished stare decisis by inventing the monstrous prospect of anti-precedent precedent. In Callais, the Court’s feudal Leviathan gained a powerful tentacle with which it may suffocate American democracy, but it is not different in kind to the rest of the beast.
The Supreme Court will only have so many cases where it could hear arguments that seek to challenge the beast itself. Justice Kagan’s attempts to incrementally correct the Court’s stare decisis errors by starting from a strong position and building outward from there actually forfeit her chance to strike at Leviathan in the ever-present now. There are only so many more cases that will arise before the Court’s departure from the common law maxim of stare decisis for what appears to be feudal slavery causes the nation to completely succumb to a tyranny of the Court’s own making.
Yours Cordially,
Joshua J. Schroeder, Esq.
[1] Long forgotten is Justice Stevens’ warning in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (Stevens, J., dissenting) about the “cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education,” because, obviously, “the history books do not tell stories of white children struggling to attend black schools.”
[2] Louisiana v. Callais, slip op. No. 24–109, at 35 (2026) (Kagan, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455–56 (2015); Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559, 579 (2021) (Alito, J., dissenting)).
[3] Id. at 31 (“The majority has thus nullified Congress’s decision to provide a remedy, without proof of intent, for state action that “results in” a minority group’s lesser opportunity “to elect representatives.”).
[4] Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”).
[5] Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 19 (2024).