Thomas, J., dissenting
II
Even if §2 applies here, however, Alabama should prevail. The District Court found that Alabama’s congressional districting map “dilutes” black residents’ votes because, while it is possible to draw two majority-black districts, Alabama’s map only has one.[1] But the critical question in all vote-dilution cases is: “Diluted relative to what benchmark?” Gonzalez v. Aurora, 535 F. 3d 594, 598 (CA7 2008) (Easterbrook, C. J.). Neither the District Court nor the majority has any defensible answer. The text of §2 and the logic of vote-dilution claims require a meaningfully race-neutral benchmark, and no race-neutral benchmark can justify the District Court’s finding of vote dilution in these cases. The only benchmark that can justify it—and the one that the District Court demonstrably applied—is
- ↑ Like the majority, I refer to both courts below as “the District Court” without distinction.
the founding or for more than a century thereafter. See T. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 708–732 (1999). But, even putting those problems aside, any appeal to heightened statutory stare decisis is particularly misplaced in this context. As the remainder of this dissent explains in depth, the Court’s §2 precedents differ from “ordinary statutory precedents” in two vital ways. Ante, at 2, n. 1 (opinion of Kavanaugh, J.). The first is their profound tension with the Constitution’s hostility to racial classifications, a tension that Justice Kavanaugh acknowledges and that makes every §2 question the reverse side of a corresponding constitutional question. See ante, at 4. The second is that, to whatever extent §2 applies to districting, it can only “be understood as a delegation of authority to the courts to develop a common law of racially fair elections.” C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 383 (2012). It would be absurd to maintain that this Court’s “notoriously unclear and confusing” §2 case law follows, in any straightforward way, from the statutory text’s high-flown language about the equal openness of political processes. Merrill v. Milligan, 595 U. S. ___, ___ (2022) (Kavanaugh, J., concurring in grant of applications for stays) (slip op., at 6).
