Supreme Court Conservatives Say Racial Gerrymanders Are Very Cool, Very Legal
If your gerrymander is so disgustingly racist that it offends Chief Justice John Roberts, the guy who gleefully gutted the Voting Rights Act, then it's pretty blatant. And yet, it wasn't enough to save Black residents from Alabama who just lost their representation thanks to Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. This is the world that Donald Trump and Mitch McConnell have made, and the law is functionally whatever those goons in robes say it is.
On January 24, a three-judge panel — two Trump appointees and a Republican nominated by Clinton — unanimously tossed out Alabama's congressional maps. Republicans packed as many of the state's Black voters as possible into District 7, which includes Birmingham and parts of the Black Belt, while cracking the rest of the state's minority population into majority-white districts. The result is that Black residents, who make up 27 percent of the state's population, will constitute a majority in just one out of seven — that is, 14 percent — of the state's congressional districts.
And even under what remains of the VRA after Roberts did what he did in Shelby County v. Holder, that's still illegal because it gives the members of a minority group "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." So the trial court applied the VRA as written, taking into account the appropriate precedential case, and found that the map was illegal.
But the state appealed to the Supreme Court, and those assholes are really not so much for law and precedent any more. Time for another SCOTUS shadow docket shitshow.
The bulk of the 21-page order is made up of Justice Kavanaugh pretending that he's not green-lighting racial gerrymanders across the land, while Justice Elena Kagan reads him for filth. Justice Roberts spends a few paragraphs mewling that his conservative brethren are making the court look bad by overruling the law on the shadow docket, without even the pretense of a hearing. But you can safely ignore that, along with his loud protestations that the court is totally legit and nonpartisan. What. Ever.
Alabama finalized its congressional maps in November, and the challengers promptly sued to enjoin them. The trial court held seven days of hearings to develop the evidentiary record, then applied the facts and the law in a detailed 234-page holding, giving legislators two weeks to come up with legal, nondiscriminatory maps. This timeline would not impede the election, and indeed, states are still finalizing their congressional maps across the country. Nonetheless, Justice Kavanaugh insists that SCOTUS simply must jump in and allow Alabama to hold the 2022 elections using this blatant racial gerrymander or all hell will break loose.
With respect to the request for a stay of the District Court’s injunction for the 2022 elections, the State argues that the District Court’s injunction is a prescription for chaos for candidates, campaign organizations, independent groups, political parties, and voters, among others. The State says that those individuals and entities now do not know who will be running against whom in the primaries next month. Filing deadlines need to be met, but candidates cannot be sure what district they need to file for. Indeed, at this point, some potential candidates do not even know which district they live in. Nor do incumbents know if they now might be running against other incumbents in the upcoming primaries.
Of course, the state could have avoided this chaos by not enacting an illegal racial gerrymander. But in Justice Kavanaugh's world, Black residents of Alabama will just have to put up with being disenfranchised for another cycle to give the Supreme Court time to think the issue over. And if that sounds familiar, it's because it's the same bullshit reasoning these goons used in the Texas abortion case. Essentially, a trial judge finds that Republican legislators have broken the law, and the Supreme Court lurches into action saying, "Hey, go ahead and break the law until we get around to overruling it. Cheers, mate!"
And, hey, spoiler alert, the last vestige of the Voting Rights Act is probably going to go the way of Roe v. Wade when these fuckers get done with it.
"As to the merits, the underlying question here is whether a second majority-minority congressional district (out of seven total districts in Alabama) is required by the Voting Rights Act and not prohibited by the Equal Protection Clause," Kavanaugh notes ominously. "But the Court’s case law in this area is notoriously unclear and confusing."
Let's go out on a limb and guess that they're going to un-confuse the case law by giving Republican legislators carte blanche to ensure that Black voters never get a chance to elect a Democrat again.
"The State’s legislature enacted its current plan in less than a week," Kagan notes, cutting through Kavanaugh's ridiculous predictions of chaos if the trial court's injunction is left in place.
"The general election is around nine months away; the primary date is in late May, about four months from now. See App. 261. Even the first day of absentee primary voting (which Alabama has leeway to modify) is March 30, more than two months after the court issued its order," she adds, observing that Alabama has known since 2018 that the plaintiffs were going to challenge any map that left Black residents with only one district, despite their rising population share — a fact Kavanaugh conveniently omits when he says that the new maps are basically the same as the old maps, so it's totes cool.
Kavanaugh also gets shirty about being called out for using the shadow docket to upend the law.
"The principal dissent’s catchy but worn-out rhetoric about the 'shadow docket' is similarly off target," he snivels. "The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court’s stay order is not a decision on the merits."
As if the court's fascist wing isn't allowing Alabama and any other state that feels like it to treat the VRA as a nullity, sticking the state's Black residents with some shitty white Republican congressman for all of 2023 and 2024.
Justice Kavanaugh criticizes the \u201cworn-out rhetoric\u201d about #SCOTUS\u2019s \u201cshadow docket\u201d while concurring in a shadow docket ruling that reinforces most of the criticisms (by producing substantive effects without an opinion for the Court).\n\nWorn out, indeed.\n\nhttps://www.supremecourt.gov/opinions/21pdf/21a375_d18f.pdf\u00a0\u2026pic.twitter.com/FaU98NJ37N— Steve Vladeck (@Steve Vladeck) 1644273057
Justice Kegstand is exactly as evil as you thought, and boy does he hate it when people point it out. So let's have Justice Kagan point it out at length!
Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.
In summary and in conclusion, THIRTEEN JUSTICES FOR THIRTEEN CIRCUITS. It's time.
[Merrill v. Milligan, Order]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.