CHIEF JUSTICE ROBERTS: Justice
Jackson?
JUSTICE JACKSON: So where in Section
2 does it mandate another minority district? I
mean, my -- my understanding, as I explored
with Ms. Nelson, is that Section 2 is the
mechanism by which we determine that equal
electoral opportunity is not being provided for
a certain minority group.
And we've interpreted in Gingles,
we've given some flesh to how one goes about
identifying that set of circumstances.
But I thought that's the end of it in
terms of the Court's announcement under Section
2, and the Court then turns to the state and
says: How do you want to remedy this? We've
got a problem.
And sometimes the state might draw a
second minority district. Sometimes it might
not. And yet your answer to Justice Barrett
was: Well, everybody just knows that that's
the automatic remedy. So can -- can you help
me figure out that disconnect?
- AGUIÑAGA: Well, Justice Jackson,
I think there's a reason why this Court's
voting precedents going all the way back to
Shaw I are so tied up with race. It's because
the -- the remedy, as parties and the courts
have understood Section 2 to operate, is almost
always going to be race-based. That's why they
went --
JUSTICE JACKSON: No, they're show --
they're so -- they're so tied up with race
because that's the initial problem, right?
That's where -- that -- that's the beginning.
The beginning is the claim that a person makes
under Section 2 that because of their race,
they are not being afforded equal electoral
opportunity.
It is a separate question as to how we
go about remedying that and the extent to which
we need to use race as a remedy. That's the
question we're here on today.
But the Section 2 issue is just what
circumstances do we look at to determine
whether this problem of unequal electoral
opportunity on the basis of race is occurring.
- AGUIÑAGA: Right. And a couple of
responses to that, Justice Jackson.
JUSTICE JACKSON: Wait. So can I just ask --
- AGUIÑAGA: So --
JUSTICE JACKSON: -- why is that not a
compelling state interest to -- to identify
areas in which that problem is occurring?
- AGUIÑAGA: Your Honor, of course,
as this Court recognized in SFFA, states can
remedy intentional discrimination if they --
JUSTICE JACKSON: No, I'm not talking
about the remedy. I'm not talking -- I'm
talking about the --
- AGUIÑAGA: They can identify –
JUSTICE JACKSON: Identify, all right.
- AGUIÑAGA: They -- of course.
JUSTICE JACKSON: So, if -- if I'm
right that Section 2 is about identifying the
problem and then requiring some remedy, I don't
understand why your answer to Justice Kagan's
question about is this a compelling state
interest is no. The answer is obviously yes,
that you have an interest in remedying the
effects of racial discrimination that we
identify using this tool.
Whether you go too far in your remedy
is another issue, right?
- AGUIÑAGA: Your Honor, I think
step zero in all these cases, it was certainly
step zero in the Robinson litigation, is the
Plaintiffs came in and said we want another
majority-Black district. I think the Court --
JUSTICE JACKSON: I thought they came
in and said we are not receiving equal
electoral opportunity because our votes are
being diluted.
- AGUIÑAGA: Which is the same way
of saying we deserve a second majority-Black
district.
JUSTICE JACKSON: No, it's not because
that -- again, just trust me on this -- the --
the second electoral -- or second district is a
remedy that one could offer for a problem that
we've identified. And the whole Robinson
litigation was about identifying the problem.
Is this really happening?
In many, many Section 2 cases, the
court says you're wrong, you're fine, there --
there is not an electoral opportunity being
denied to you, go away. In this case, the
court said, I see, I'm looking at the factors,
I appreciate what you're saying, you've proven
that we have this problem, and so the next
question is, how do we go about remedying it?
- AGUIÑAGA: Right. And the
problem, Justice -- Justice Jackson, that the
Middle District identified was not intentional
discrimination. And, in fact, I think, when I
hear my --
JUSTICE JACKSON: Why do you need
intentional discrimination to remedy a problem
like the one that I've identified?
- AGUIÑAGA: Because, if you're
going to use race the way that the Robinson
Appellants want the Court to use race in
drawing a second majority-minority district,
you've got to have a compelling interest.
JUSTICE JACKSON: Thank you.
Link to entire transcript
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/24-109_5i36.pdf
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