On Monday the Supreme Court refused to deal another lethal blow to the Voting Rights Act.
Not today anyway.
It was a surprisingly timid move given the track record of the Roberts Court. The Voting Rights Act of 1985 stands as perhaps the single most effective piece of civil rights legislation in US history. When it first kicked in the impact was immediate. Mississippi saw Black voter registration jump from 6.7 percent straight up to 60 in just two years. Jim Crow suppression didn’t stand a chance against that specific web of provisions.
But the current majority loathes the law.
Justice Elena Kagan put it plainly in a 2024 dissent. Her colleagues have treated no other statute worse. It fits. Chief Justice John Roberts tried to convince Ronald Reagan to veto the 1982 amendments to the VRA when he was a young lawyer back in the day. He failed then. Now he helps repeal the protections he once argued against in cases like Louisiana v. Callais (2025).
So why the pause on Monday?
The Court issued orders in two separate cases. Neither endorsed Justice Neil Gorsuch’s aggressive theory that the VRA lacks an implied right for private lawsuits nor did it reject the idea entirely. The justices just sent the lower courts back to the drawing board. Ask again they basically said.
One lower court had backed Gorsuch in Turtle Mountain Band v. Howe. Another rejected it in Board of Election Commissioners v. NAAC.
Why punt now? The Court has bled this law white for a decade. It’s unclear if this fight even matters anymore. Or maybe it’s the only one left.
What is left of the law?
Let’s look at the wreckage.
Before the Republicans started tearing apart the VRA with Shelby County v. Holder in 2013 the law had teeth. It forced states with histories of discrimination to get preclearance for new voting laws. Shelby killed that provision. Then came Callais which effectively wiped out the 1982 section on redistricting.
That 1982 piece was the safety net. It banned election laws that resulted in racial denial of voting rights regardless of whether you could prove racist intent. It recognized that racism often wears a disguise.
Now Justice Samuel Alito’s majority opinion says liability exists only when circumstances give a “strong inference” of intentional discrimination.
But here’s the problem.
The 15th Amendment already bars intentional racial discrimination in voting. That was true in 1964 and it’s still true today. The Constitution already did this work. The VRA existed because states were creative. If you struck down one literacy test they’d write another one. Preclearance stopped them before the game began. Shelby and Callais removed that barrier.
So right now the post-Callais Voting Rights Act might do zero independent work. It echoes the Constitution instead of adding anything new.
The Gorsuch loophole
This brings us back to Gorsuch.
His concurrence in Brnovich v. Democratic National Committee (2022) floated a scary idea. What if the VRA doesn’t actually let regular people sue to enforce it? No implied private right of action. Only the federal government could file these claims.
If the Republican president is asleep at the wheel your vote isn’t protected by statute only by whatever whim the Attorney General has on a Tuesday morning.
The Court’s precedent on private rights is messy anyway. In Health and Hospital Corp. v. Talevski (2024) the justices ruled that laws phrased around the “persons benefited” could be privately enforced. If the text says “athletic persons can ride bicycles” you can sue. If it says “access to bicycles must be unimpeded” you probably can’t.
The VRA says no standard or procedure shall result in denial of the right to vote.
That sounds pretty person-centered. It uses the word “right” front and center. Under Talevski you’d think private suits are alive and well.
Then came Medina v. Planned Parenthood last year. The Court tangled itself in knots there. The majority opinion was confusing disallowing a suit despite statutory language that seemed clear under previous rules. Some justices hinted that laws using the word “right” might be enforceable others weren’t so sure. It feels like a one-off ruling driven by political aversion to abortion providers rather than legal clarity.
Gorsuch’s Brnovich opinion is brief. Just one paragraph. He doesn’t explain his reasoning. He doesn’t cite Talevski. He doesn’t engage with Medina. He just says the VRA likely doesn’t authorize private lawsuits and Clarence Thomas signed on.
That’s two votes.
The big question is whether they will go further. If they shut down private suits under the VRA will they also shut them down under the 15th Amendment? The amendment’s language is strikingly similar to the statute.
If Thomas and Gorsuch believe in shutting the courtroom door on voting rights advocates why stop at a statute? The Constitution is ripe for the same treatment if they want to be consistent in their hostility.
We don’t know if they will.
On Monday they chose not to know. They pushed the date. They kept the ambiguity hanging there in the air like dust after an explosion. The lower courts get to wrestle with it first.
It leaves things hanging. No closure. Just the quiet erosion of rights happening in fits and starts. The body of the law is cold. But someone still has to write the obituary.
The Voting Rights Act remains on the statute books but does it remain on the ground? We might have to wait until the ink dries on the next opinion to find out if there’s any breath left in it at all.
