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ALLEN v. MILLIGAN

Thomas, J., dissenting

plans or districts as insufficiently tailored to that asserted interest. See, e.g., Wisconsin Legislature, 595 U. S., at ___ (slip op., at 3); Cooper v. Harris, 581 U. S. 285, 292 (2017); Shaw II, 517 U. S., at 915; Miller, 515 U. S., at 921. But we have never applied this assumption to uphold a districting plan that would otherwise violate the Constitution, and the slightest reflection on first principles should make clear why it would be problematic to do so.^[1] The Constitution is supreme over statutes, not vice versa. Marbury v. Madison, 1 Cranch 137, 178 (1803). Therefore, if complying with a federal statute would require a State to engage in unconstitutional racial discrimination, the proper conclusion is not that the statute excuses the State’s discrimination, but that the statute is invalid.

If Congress has any power at all to require States to sort voters into congressional districts based on race, that power must flow from its authority to “enforce” the Fourteenth and Fifteenth Amendments “by appropriate legislation.” Amdt. 14, §5; Amdt. 15, §2. Since Congress in 1982 replaced intent with effects as the criterion of liability, however, “a violation of §2 is no longer a fortiori a violation of” either Amendment. Bossier Parish School Bd., 520 U. S., at 482. Thus, §2 can be justified only under Congress’ power to “enact reasonably prophylactic legislation to deter constitutional harm.” Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 11) (alteration and internal quotation marks omitted); see City of Boerne v. Flores, 521 U. S. 507, 517–529 (1997). Because Congress’ prophylactic-

↑ In Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. 178 (2017), the Court upheld a race-predominant district based on the assumed compelling interest of complying with §5 of the Voting Rights Act. Id., at 193–196. There, the Court was explicit that it was still merely “assum[ing], without deciding,” that the asserted interest was compelling, as the plaintiffs “d[id] not dispute that compliance with §5 was a compelling interest at the relevant time.” Id., at 193.

[1] In Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. 178 (2017), the Court upheld a race-predominant district based on the assumed compelling interest of complying with §5 of the Voting Rights Act. Id., at 193–196. There, the Court was explicit that it was still merely “assum[ing], without deciding,” that the asserted interest was compelling, as the plaintiffs “d[id] not dispute that compliance with §5 was a compelling interest at the relevant time.” Id., at 193.

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