In the month and a half since the Supreme Court decided Louisiana v. Callais, the actual and potential scope of that case’s destructive impact on the Reconstruction Amendments and on congressional power has only become clearer. As a reminder, in Callais, the Supreme Court effectively overruled Section 2 of the Voting Rights Act, which prohibited voting practices with racially discriminatory effects, even in the absence of discriminatory intent. More specifically, Callais held that Congress lacks the power to outlaw voting practices resulting in discriminatory effects except where the circumstances “give rise to a strong inference of racial discrimination.” The vast impact of that opinion is becoming clear not only when it comes to voting rights but also in other forms of discrimination law.
Minority voting rights
Congress enacted the current version of Section 2 in part to ensure that minority voters are able to have meaningful representation in multimember elected bodies. But the court appears to believe that purpose itself to be unconstitutional. Intentional racial discrimination in voting and election law violates the 14th and 15th Amendments, and the Supreme Court is now treating efforts to protect minority voters’ electoral influence as constitutionally equivalent to efforts to undermine it. Barely a month after deciding Callais, the court invoked “our colorblind constitution” in a shadow docket ruling allowing Alabama to eliminate the congressional district that a district court had ordered to remedy racial discrimination. That per curiam opinion, Allen v. Milligan, from which the three liberal justices dissented, effectively reversed the court’s own 2023 merits opinion in the very same litigation. (Alabama is not alone. Several other southern states have redistricted in ways that eliminate or reduce minority voters’ electoral power.)
At least as alarming is that the Allen shadow docket opinion also rejected the district court’s factual finding that Alabama intentionally discriminated against Black voters. Callais itself claimed not to be addressing intentional discrimination, only cases about discriminatory effects in redistricting. But it is now clear that this claim, barely credible to begin with, was false. In Allen, the court expanded on Callais’ new requirement that a voting rights plaintiff alleging disparate impact in redistricting produce an alternative map that performs “just as well” as the state’s map “with respect to all of the state’s constitutionally permissible criteria.” The court combined that new standard with prior precedent demanding a presumption of “legislative good faith” in redistricting cases alleging intentional discrimination. That combination, as applied in Allen, suggests that once a state claims any constitutionally permissible basis for its map, the case may be functionally over. Plaintiffs may not even be allowed to try to demonstrate that the claimed “permissible basis” is a pretext for intentional discrimination. Whether they can proceed to that stage will depend on whether they can produce an alternative map that meets Callais’ new “just-as-well” standard.
Indeed, the Allen court barely mentioned the district court’s analysis of the extensive evidence of racial discrimination. The Supreme Court ignored, for example, the district court’s detailed findings that Alabama had deviated significantly from its prior redistricting practices and criteria. And it even credited as a constitutionally permissible purpose Alabama’s desire to keep intact a district that encompasses the Gulf Coast despite the state’s express reliance on that area’s “French and Spanish colonial heritage.” (In other words, according to Allen, it’s constitutionally permissible for the state to take into account a community’s white European heritage in drawing its map.) As Justice Sonia Sotomayor said in dissent, if the district court clearly erred by finding discriminatory intent here, “there is no realistic case in which the presumption of legislative good faith can ever be rebutted.” Cases in which the circumstances “give rise to a strong inference of racial discrimination,” as demanded by Callais, may thus be a null set.
So Callais has decimated voting rights protections for minorities. But perhaps only for minorities. In the past, the court has required plaintiffs alleging intentional discrimination in redistricting to show that consideration of race “predominated” over other factors. Callais, on the other hand, suggests that any desire to protect or perhaps even consider minority voting power is unconstitutional. We may well see a wave of new racial gerrymandering claims brought by white voters challenging their districts on that basis. One wonders whether or how the “presumption of legislative good faith” will apply in such cases.
Callais’ impact on the law of employment discrimination
Up next may be employment discrimination, at least if the Department of Justice’s Office of Legal Counsel has its way. (OLC “provides legal advice to the President and all executive branch agencies.” It does not have the power to actually change the law.) On June 9, 2026, OLC issued an opinion entitled “Constitutionality of Disparate-Impact Liability Under Title VII.” In reliance on Callais and the new version of Allen, OLC purports to declare unconstitutional existing law outlawing (under some circumstances) employment practices that have discriminatory effects. In so doing, it attempts to wipe aside decades of Supreme Court precedent and Congress’ own decision, in 1991, to codify prohibitions on facially neutral employment practices that exclude protected groups but are not tied to job performance.
By way of background, everyone – including OLC – agrees that as enacted in 1964, Title VII outlaws intentional discrimination on the basis of race and other protected characteristics. In 1971, in a case called Griggs v. Duke Power Co., the Supreme Court held that under some circumstances, Title VII also outlaws practices with a discriminatory effect even in the absence of intentional discrimination.
The facts of Griggs are instructive (although simplified here). Before Title VII was enacted, Duke Power, based in North Carolina, had an entirely segregated workforce. African Americans could work only in the Labor Department, one of five “operating departments,” and the one that paid the least. After Title VII went into effect, Duke Power eliminated that restriction but imposed several new requirements. For some jobs, it began to require a “passing” performance on two tests, one that purported to measure “general intelligence” and the other apparently addressing “mechanical comprehension.” The tests had the effect of screening out almost all of the African Americans seeking jobs outside the Labor Department. Duke Power did not claim that these tests measured any skills or abilities necessary for the jobs in question or even for being trained to do those jobs. Instead, it said only that it thought the tests “generally would improve the overall quality of the work force.” Nonetheless, the district court found no intentional discrimination.
In Griggs, the Supreme Court held, 8-0, that Duke Power violated Title VII because it engaged in an employment practice – the test requirement – that had the effect of excluding African Americans from its workforce. It explained that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”
In its June 9, 2026, memo, OLC tries to rewrite Griggs, saying that “[t]he trial court’s findings were controversial, considering” the evidence in the record of discriminatory intent. Of course, it may well be true as a factual matter that Duke Power intentionally discriminated against African Americans. But that is not, remotely, the basis on which the Supreme Court decided Griggs. The court was very explicit that it was addressing Title VII liability in the absence of discriminatory intent.
The OLC opinion also tries to rewrite what Congress did. It claims that Congress “acquiesced in [Griggs’]interpretation when it amended Title VII in 1991,” as if Congress acted only begrudgingly. But that is not correct (nor would it matter if it were given the actual amendment that Congress passed). Rather, when Congress amended Title VII in 1991, it did so in part to override a 1989 case called Wards Cove Packing Co. v. Atonio. Among other things, Wards Cove had “dilute[d] the “necessity” in the “business necessity” defense,” focusing instead on “the employer’s legitimate interests,” a much lower bar than Griggs had required.
Congress rejected Wards Cove. In the Civil Rights Act of 1991 itself, Congress stated that one of the statute’s “purposes” was “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs … and in the other Supreme Court decisions prior to Wards Cove …” (my emphasis). And to operationalize that purpose, Congress added an entire subsection to Title VII laying out how disparate impact claims operate and incorporating the language of Griggs. If a plaintiff shows that a particular employment practice has discriminatory effects, Congress said, the employer must then “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”
In other words, Congress did not “acquiesce” to Griggs. It doubled down.
But, despite Congress’ clear words to the contrary, OLC relies on Callais to try to undo all of that. It argues that disparate impact law, dating back to 1971, needs to be “update[d]” to eliminate constitutional concerns, just as Callais purported to “update” voting rights law. Specifically, it quotes Callais to argue that Title VII’s disparate impact prohibition is unconstitutional under the 14th Amendment’s equal protection clause unless it is limited to situations that “give rise to an objectively ‘strong inference’ of intentional discrimination.” Based on OLC’s updated interpretation, employment practices need only be “reasonably related to the achievement of some legitimate goal” to be valid because that reasonable relationship” necessarily “dispels an inference” of discriminatory intent.
Moreover, OLC specifically identifies “aptitude tests” and “knowledge-based tests” as “presumptively job-related.” Under this standard, of course, Griggs would have come out the other way. In other words, OLC is arguing both for overruling the key holding of Griggs and for eviscerating the central provision of the 1991 Civil Rights Act that codified that holding. It is arguing that Congress has no power to legislate against race discrimination in the very way Congress expressly chose to do so.
And just as Callais and Allen will make protecting minority voting rights all but impossible, OLC’s analysis, if adopted by the courts, could actually encourage employers to adopt or keep in place tests and screening mechanisms that have a disparate impact on minorities. In a footnote, OLC asserts that “racial or ethnic diversity cannot be a legitimate business goal that defeats a disparate-impact challenge to a facially neutral policy.” The implications of this position are astonishing. Imagine an employer who is deciding which test or screening criteria to use in hiring employees. If it chooses one with a less disparate impact on minorities, in part for that reason, has it then violated Title VII? After all, white plaintiffs could claim that the chosen test has a disparate impact on them – or that any consideration of disparate impact on minorities has this effect and may even rise to the level of intentional discrimination. Those outcomes are not what Title VII says or what Congress intended, but they may well be what OLC demands is required.
What Callais’ impact means for how we think about Constitutional Law
There is much more (and in my opinion, nothing good) to say about how the OLC opinion, if adopted by the Supreme Court, would undermine both congressional power and longstanding law. But I want to zoom out a bit here. Callais is only one of numerous cases in which this court has dramatically changed the law or appears about to do so. Whether one celebrates or condemns those cases, that fact is undeniable.
But that fact also should remind us that these new holdings are not necessarily permanent. As I’ve argued elsewhere, change in constitutional law is nothing new. (Think Plessy v. Ferguson and Brown v. Board of Education.) That’s not to understate the deeply destructive nature of many of this court’s decisions and the significant harm they inflict on real people. Nor is it to understate the very long time horizons and massive political and social mobilization involved in constitutional change, nor the fact that the court’s appalling voting and election law jurisprudence may well extend those timeframes and require even more intense efforts. The point is simply this: constitutional law is changing dramatically. It can change again.
