May 6, 2026 | Volume 33, Issue 12
This Report summarizes opinions issued on April 29, 2026 (Part I); and cases granted review on April 27, 2026 (Part II).
Opinions
Louisiana v. Callais, 24-109.
By a 6-3 vote, the Court struck down a Louisiana congressional map as a racial gerrymander, in the process significantly limiting how §2 of the Voting Rights Act (VRA) applies to redistricting. Congress amended §2 of the VRA in 1982 to “prohibit all discriminatory ‘effects’ of voting practices,” but without requiring racial proportionality. After the 1982 amendment, the Court established a framework for evaluating §2 claims in Thornburg v. Gingles, 478 U.S. 30 (1986), which required a plaintiff to make four showings: (1) a minority group sufficiently large and geographically compact to constitute a majority in a “reasonably configured” district, (2) the minority group is politically cohesive, (3) the local white majority votes sufficiently as a bloc to defeat the minority’s preferred candidate, and (4) based on the “totality of circumstances,” the political process is not “equally open” to minority voters.
Louisiana redrew its six congressional districts after the 2020 census, which included one district with a majority of black voters. In 2022, a federal judge concluded in Robinson v. Ardoin that the new map likely violated the VRA by “‘packing’ large numbers of Black voters into a single majority-Black congressional district . . . and ‘cracking’ the remaining Black voters among the other five districts.” Louisiana then drew a new map, which included a second majority-black district stretching 250 miles across the state, and which also protected important Republican incumbents in other districts. A second lawsuit was filed, challenging the new majority-black district as a racial gerrymander that violated the Equal Protection Clause. A three-judge district court agreed that the new map effected a racial gerrymander. In an opinion by Justice Alito, the Court affirmed.
The Court began by noting that the use of race to draw political districts is a form of discrimination that triggers strict scrutiny. The Court then considered “whether compliance with the [VRA] should be added to our very short list of compelling interests that can justify racial discrimination.” It held that “[c]ompliance with §2, as properly construed,” can be added to the list. And so the Court went on to construe §2. After parsing its language, the Court concluded that “the ‘opportunity’ of [] ‘members of the electorate’ to contribute their votes to a winning cause is whatever opportunity results from the application of the State’s combination of permissible criteria. . . . And under §2, a minority voter is entitled to nothing less and nothing more.” The Court stated that this understanding of §2 “ensures that §2 of the Voting Rights Act does not exceed Congress’s authority under §2 of the Fifteenth Amendment.” The Fifteenth Amendment “bars only state action ‘motivated by a discriminatory purpose.’” “For this reason,” stated the Court, “the focus of §2 must be enforcement of the Fifteenth Amendment’s prohibition on intentional racial discrimination. When §2 is properly interpreted in the way we have outlined, it is sufficiently congruent with and proportional to the Amendment’s prohibition. While that interpretation does not demand a finding of intentional discrimination, it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” “Properly understood,” then, “§2 thus does not intrude on States’ prerogative to draw districts based on nonracial factors.”
With that background, the Court found that Gingles “paid insufficient attention to the language of statutory provisions.” A correct reading of §2 “does not require abandonment of the Gingles framework,” only an update to reflect recent develops and to align with the statutory text. The Court identified four historical developments over the past 40 years that guided its updated understanding of §2: (1) “vast social change . . . particularly in the South,” leading to “great strides” in ending entrenched racial discrimination; (2) a two-party system with frequent correlation between race and party preference; (3) the Court’s holding in Rucho v. Common Cause, 588 U.S. 684 (2019), that partisan gerrymandering claims are not justiciable, now incentivizes litigants to exploit §2 by repackaging “a partisan-gerrymandering claim as a racial-gerrymandering claim”; and (4) computer-drawn district maps allow a §2 plaintiff to “identify an alternative map that fully achieves all the State’s legitimate goals while producing ‘greater racial balance.’“ In light of these developments, the Court updated the Gingles framework to “realign it with the text of §2 and constitutional principles.”
First, the Court added two requirements for a plaintiff to show that the first Gingles precondition is met. “[P]laintiffs cannot use race as a districting criterion,” and “illustrative maps must meet all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals,” such as “a target partisan distribution of voters” or protection for specific incumbents. Second, to show politically cohesive voting by the minority and racial-bloc voting by the majority (the second Gingles precondition), a plaintiff “must provide an analysis that controls for party affiliation,” showing “that voters engage in racial bloc voting that cannot be explained by partisan affiliation.” And third, when considering the “totality of circumstances,” the inquiry must be on evidence with more than “a remote bearing” on prohibited “present-day intentional racial discrimination regarding voting. Discrimination that occurred some time ago and present-day disparities characterized as ongoing ‘effects of societal discrimination’ are entitled to much less weight.”
The Court distinguished its recent decision in Allen v. Milligan, 599 U.S. 1 (2023), which had upheld the Gingles framework and found that Alabama’s congressional districts likely violated the VRA. The Court noted that Allen involved an evidentiary standard, not a Fourteenth Amendment inquiry, and had left open whether race-based redistricting, even if permissible under the VRA, could “extend indefinitely into the future.” And the state in Allen had not cited partisan political goals for its map, and so the Court had not addressed “whether §2 plaintiffs must disentangle race from politics in proving their case.”
The Court then applied its new test to the Louisiana redistricting plan and found that it plainly failed to meet a compelling interest to overcome the strict scrutiny review applicable to race-based districting. Under the Court’s new framework, the VRA did not provide a compelling interest because the state did not need to create a new majority-minority district to comply with §2. The Court faulted the Robinson plaintiffs for failing each step of the new framework. First, “they did not provide an illustrative map that met all the State’s nonracial goals,” such as protecting the Republican incumbents. Second, the Robinson plaintiffs failed to show “racially polarized voting” because their offered evidence was just that black and white voters consistently supported different candidates, without controlling for “partisan preferences.” And under the “totality of circumstances,” the Court found no evidence that the original map “showed even a plausible likelihood of intentional discrimination by the State.” The Court discounted evidence of past racial discrimination by Louisiana, holding that the focus must be on “current conditions,” not on “decades-old data relevant to decades-old problems.”
Justice Thomas filed a brief concurring opinion, which Justice Gorsuch joined. He first applauded the decision, which “should largely put an end to this ‘disastrous misadventure’ in voting-rights jurisprudence.” He then repeated his position that Gingles was incorrectly decided and that “§2 of the Voting Rights Act does not regulate districting at all.”
Justice Kagan filed a lengthy dissent, which Justices Sotomayor and Jackson joined. Justice Kagan said that the Court’s project to “eviscerate” the VRA was now complete. She described the importance and history of the VRA, “born of the literal blood of Union soldiers,” and passed during a time when “state officials routinely deprived African Americans of their voting rights” rendering the black vote “illusory.” Justice Kagan asserted that “[u]nder the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power.” She described the majority’s requirement to show a discriminatory motivation as “well-nigh impossible.” Justice Kagan went through the prior cases that “dismantle[d]” parts of the VRA, including Shelby County v. Holder, 570 U.S. 529 (2013), which eliminated §5’s “preclearance” requirement, and Brnovich v. DNC, 594 U.S. 647 (2021), where the court held that §2 did not apply to “discriminatory burdens on the casting of ballots.” The dissent criticized the majority for availing “itself again of the tools used before to dismantle the Act: untenable readings of statutory text, made-up and impossible-to-meet evidentiary requirements, disregard for precedent, and disdain for congressional judgment.”
Justice Kagan detailed the passage of the 1982 amendment to the VRA, done specifically to overturn City of Mobile v. Bolden, 446 U.S. 55 (1980), which had held that the VRA barred only “intentional discrimination.” But “[i]t is the rare legislature, as the history of voting discrimination shows, that cannot camouflage racial targeting with race-neutral justifications.” Congress reacted to Bolden and replaced the language “to deny or abridge” with the phrase “results in a denial or abridgement” of voting, which occurs when “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” §10301(b). The later clarification was added as the result of political compromise to prevent a requirement for “racially proportional representation.” But the overall purpose was to repudiate Bolden’s intent requirement and adopt a “results test.”
On the facts here, Justice Kagan asserted that the Robinson suit correctly prevailed in their §2 claim: based on a “voluminous record,” Louisiana had “cracked” a compact group of black residents, who vote as a bloc distinct from their white counterparts, and diluted those voters across several white-majority districts where “their preferences would count for nothing.” The dissent found that the Robinson court applied, “in an altogether unexceptionable way, the framework used for the last 40 years to evaluate Section 2 vote-dilution claims.” In contrast, Justice Kagan described the new “Callais contrivance” to require proof “that a State adopted an election rule with racially discriminatory intent,” allowing states to politically gerrymander in ways that “minimize or cancel out minority votes.” In sum, the majority “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.’” Finally, Justice Kagan criticized the majority for abandoning statutory stare decisis without “a superspecial justification.” Justice Kagan concluded by stating that “the Court betrays its duty to faithfully implement the great statute Congress wrote” and “will set back the foundational right Congress granted of racial equality in electoral opportunity.”
First Choice Women’s Resource Centers, Inc. v. Davenport, 24-781.
The Court unanimously held that a faith-based pregnancy center has Article III standing to challenge on First Amendment grounds a state government’s subpoena seeking to compel disclosure of nearly all its private donor information. First Choice Women’s Resource Centers is a religious nonprofit organization that provides counseling and resources to pregnant women in New Jersey. Consistent with its religious beliefs, the organization does not provide abortion services or refer clients to those that do. In 2022, New Jersey’s Attorney General served a subpoena on First Choice, commanding the group to produce documents reflecting the names, phone numbers, addresses, and places of employment of all individuals who had made donations to First Choice by any means other than through one specific webpage. This demand was made in the context of a consumer protection investigation by the state’s Reproductive Rights Strike Force into whether First Choice had misled donors into believing that its reproductive health care services included access to abortions. The parties brought competing suits in state court. While litigation was pending there, First Choice filed suit in federal court under 42 U.S.C. §1983, seeking to prevent the Attorney General from enforcing the document demands on First Amendment grounds. The district court denied First Choice’s request for a preliminary injunction and dismissed its complaint. It concluded that the organization lacked Article III standing because, absent any state court order compelling production, First Choice had yet to suffer an injury from the subpoena. A divided panel of the Third Circuit affirmed, agreeing that First Choice “had not established ‘enough of an injury’ to permit its case to proceed.” In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court concluded that First Choice’s federal lawsuit may proceed because “the Attorney General’s subpoena itself—and specifically its demand for donor information—has caused it to suffer an actual and ongoing injury to its First Amendment rights by deterring donors from associating with it.” The Court explained that it has “long understood” the First Amendment guarantees of free speech, worship, and assembly to carry “a corresponding right to associate with others.” Equally well established is the principle that governments cannot infringe the freedom of association of political, social, religious, and other minorities through “compelled disclosure of affiliation with groups engaged in advocacy.”
For example, in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), the Court rejected the Alabama Attorney General’s attempts to compel disclosure of the names and addresses of all members of the NAACP. The Court there recognized the “vital relationship” between “privacy in one’s associations” and the “freedom to associate,” and held that the Attorney General’s demand for private membership rolls burdened the constitutional rights of members because of its tendency to “induce members to withdraw from the Association and dissuade others from joining it.” Likewise, in Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021), the Court quashed the California Attorney General’s attempt to compel disclosure of private donor information from conservative and religious advocacy groups. The Court held there that obtaining the names and addresses of donors inevitably carried a deterrent effect on the exercise of First Amendment association rights, “even when those demands contemplate disclosure only to government officials and not ‘the general public.’” The Court concluded here that, “[a]gainst this backdrop, the question” whether First Choice had established a present injury to its First Amendment associational rights “all but answers itself.” The subpoena was a command to produce private donor information made under threat of legal penalties for failure to comply. And First Choice had plausibly alleged, via its complaint and unrebutted declarations, that the Attorney General’s demand for the personal information of anonymous donors jeopardized its ability to carry out its religious mission by discouraging “individuals and entities from associating with First Choice” out of “fear that they themselves will face retaliation.”
The Court rejected three arguments New Jersey presented to challenge standing. First, the Court explained that the subpoenas’ “non-self-executing” nature is immaterial because the injury of chilling donors’ constitutionally protected association occurs when the government’s demand for disclosure is issued, not just when it is enforced, and persists for as long as the subpoena remains outstanding. New Jersey’s subpoena “commanded” First Choice to produce private donor information and warned that failure to comply “may render [the group] liable for contempt of Court” or “other penalties.” Second, the Court flatly rejected the premise that no First Amendment injury occurred because the Attorney General has left open a single avenue of anonymous donation—a website which the state is satisfied does not mislead potential donors as to First Choice’s stance on abortion. “[B]y effectively restricting how First Choice may interact privately with its donors, the subpoena” “has burdened First Choice’s associational rights.” Finally, the Court was unmoved by the argument that the Attorney General may in the near future assent to a state court protective order to keep confidential any information First Choice discloses to it. The Court stated that an official demand for private donor information could itself discourage reasonable individuals from associating with a group and dissuade that targeted group from expressing dissident views, even where no disclosure to the general public occurs.
Cases Granted Review
Department of Labor v. Sun Valley Orchards, LLC, 25-966.
At issue is “(1) whether Article III of the Constitution precludes the Department of Labor from adjudicating proceedings to collect monetary remedies from employers who have allegedly violated the terms and conditions of employment of H-2A workers and domestic workers in corresponding employment;” and “(2) whether 8 U.S.C. §1188(g)(2) authorizes the Department of Labor to adjudicate proceedings to collect monetary remedies from employers who have allegedly violated the terms and conditions of employment of H-2A workers and domestic workers in corresponding employment.”
As part of the 1986 amendment to the Immigration and Nationality Act of 1952, Congress created the H–2A visa program, under which federal agencies can authorize U.S. employers to “import” foreign nationals into the United States for temporary agricultural work. As a condition of bringing H–2A workers to the United States, federal law requires the employer to “compl[y] with criteria for certification,” including those prescribed by the Secretary of Labor, and to offer workers certain minimum “terms and conditions” of employment established by the Secretary. 8 U.S.C. §1188(c)(3)(A). Employers also must “furnish housing in accordance with regulations.” 8 U.S.C. §1188(c)(4). The INA authorizes the Secretary of Labor “to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with the terms and conditions of employment under [the statute].” 8 U.S.C. §1188(g)(2). The Secretary has issued regulations establishing an administrative process to enforce program obligations, recover back wages, and impose civil penalties. See, e.g., 29 C.F.R. 501.16. This process includes adjudication and appeal via administrative proceedings, and judicial review of the agency’s final order in federal district court under the Administrative Procedure Act.
Pursuant to these provisions, the Department of Labor assessed several hundred thousand dollars of backpay and monetary penalties against respondent Sun Valley Orchards, a New Jersey farm that employs foreign and domestic seasonal workers to harvest vegetables. Among other things, the Department determined that H–2A workers were underpaid and subjected to unsanitary and overcrowded living facilities, lacked access to safe drinking water and transportation, and had wages improperly garnished for food and drinks, which Sun Valley sold to them at a profit. Sun Valley sued the Department in federal court, arguing in relevant part that the agency adjudication against it was unauthorized by Congress and violated Article III. The district court granted the government’s motion to dismiss, finding that §1188(g)(2) “clear[ly]” authorized adjudication in the agency courts and that Congress has “significant latitude to assign adjudication of public rights to entities other than Article III courts” in the immigration context. The Third Circuit reversed. 148 F.4th 121. It held that this case involves private rights that require judicial adjudication under SEC v. Jarkesy, 603 U.S. 109, 127 (2024). That’s because the case “is made of the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” The court reasoned that this case was akin to the breach of contract suits traditionally heard in common law courts and had imposed the common law remedy of civil penalties. The court found that, although “certain immigration-related matters” fall within the public rights exception to Article III, the violations at issue here concern “employment law” rather than immigration.
The United States argues that administrative adjudications for employers’ violations of H–2A conditions was permissible “because adjudicating the terms and conditions of an immigration-benefits program involves quintessential public rights”―and the public-rights doctrine allows the Executive Branch to adjudicate disputes about the granting and withdrawing of governmental privileges. Immigration falls within the “historic categories of adjudications” that Congress may assign to the Executive branch, and the statute at issue is inexorably tied to Congress’s power to “prescribe the terms and conditions” upon which aliens may enter the country. The government further argues that because the ability of U.S. employers to import foreign workers into the United States for temporary or seasonal agricultural work is a “government-created privilege,” the public-rights doctrine allows the Executive Branch to adjudicate “cases involving the terms and conditions that beneficiaries must follow to obtain those privileges.” And although the imposition of civil penalties ordinarily implicates Article III, Court precedent holds that Congress may affix a penalty for violation of public rights and authorize executive officers to assess such penalties “without the necessity of invoking the judicial power.”
Sun Valley challenges whether Congress has actually authorized the Department to adjudicate H-2A enforcement proceedings, since §1188(g)(2) authorizes the agency to enforce “terms and conditions of employment,” not “terms and conditions of participating in the H-2A visa program.” In its view, §1188(g)(2) authorizes the Department to “impose” liability on H-2A employers via the federal district courts. Regardless, Sun Valley argues that Article III precludes the Department from adjudicating proceedings to collect monetary remedies from employers who have “allegedly violated the terms and conditions of employment of H-2A workers and domestic workers in corresponding employment.” It notes that a claim for penalties and back wages on a breach-of-contract theory implicates traditional common law private rights and remedies that the government must litigate in Article III courts. Sun Valley further argues that the government cannot transform these “employment-related proceedings” into issues of “public right” simply because some of the employees are in the country on H-2A visas—especially since the department also ordered penalties and back pay with regard to Sun Valley’s domestic workers.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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