A Surprise From SCOTUS

The Trump indictment news has been consuming a lot of oxygen, as it should. But tonight we turn away from it to touch on an important Supreme Court decision that was announced just before we learned that the former president had been indicted. It’s the season where the Supreme Court will be deciding the remaining cases it heard this term, while still under the shadow is ethical improprieties by one of its number.

Allen v. Milligen was the gerrymandering case from Alabama. (It’s a consolidated case, sometimes referred to previously as Merrick v. Milligen.) A surprise ruling by an unlikely cabal of justices answered the question presented in the case, whether Alabama’s 2021 redistricting plan for its seven seats in the U.S. House of Representatives violated Section 2 of the Voting Rights Act in the affirmative. (Read the full statute, 52 U.S.C. §10301.21 here.) Chief Justice Roberts wrote the majority opinion, joined by the Court’s progressive wing: Justices Kagan, Sotomayor, and Jackson. Justice Kavanaugh joined enough of the Chief’s opinion to put the nail in the coffin of the new maps drawn by the conservative supermajority in Alabama’s state legislature. You can find the full opinion here.

That means Section II of the Voting Rights Act, which most observers thought was doomed after oral argument, is still alive. It can be used to prohibit states like Alabama from drawing maps with districts configured along lines designed to prevent Black voters from electing a number of representatives consistent with their numbers in the state. Alabama gerrymandered its maps by creating one district with a majority of the minority voters in it (nearly 60% of the voters in Alabama’s one majority-minority district are Black) and distributing the rest of the Black voting population throughout the state’s remaining 6 districts, diluting their voting power.

Despite gains in population reflected in the 2020 census, the maps Alabama’s legislature adopted made it statistically impossible for Alabama’s Black citizens to elect more than one representative, despite being 27% of the population. Another way of looking at it: Alabama has a Black population of over 25 percent, but only one of its seven Congressional districts is majority black district. 

Gerrymandering at its best. The blue district is drawn to grab as much of Alabama’s Black population as possible, including the two “hands” that stretch into majority Black parts of the cities of Birmingham and Montgomery.

An important thing to understand about the practice of gerrymandering is that it does not impact statewide races. It impacts district wide races, so it affects legislative bodies like the U.S. House of Representatives and state legislatures. Chief Justice Roberts was careful to acknowledge that in his view, there were legitimate concerns that the law “may impermissibly elevate race in the allocation of political power with the states,” but concluded that “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.” We’ll find out soon if that’s the scent of reversal in the affirmative actions cases, which the Court has yet to announce its decisions in, radiating off of those sentences.

But, don’t hold your breath for it to be long-lived. Justice Kavanaugh, the necessary fifth vote to salvage Section II doesn’t seem to be in it for the long haul; he implied he’s open to a future challenge to the law for different reasons. And there is no explanation for Justice Roberts’ change of heart. He delivered the coup de grace to Section V of the Voting Rights Act in the 2013 Shelby County v. Holder decision because “things have changed dramatically” over Justice Ginsburg’s dissent, which argued that gutting Section V because it was working was like throwing away your umbrella in the middle of a rainstorm, since you were still dry.

The cynic in me says this ruling reflects the two institutionalists, Roberts and Kavanaugh, understanding that with public confidence in the Court at rock bottom, they could not do all the things on their agenda in one term of court. And with more stinging blows likely to come in the next few weeks—both the affirmative action cases and 303 Creative where “religious freedom” butts heads with the rights of LGBTQ people—it feels like they decided telling Black voters they didn’t count was a bridge too far for even this Court in this moment. Here’s to hoping my inner cynic is off base and we’ll see more good decisions from the Court as the term comes to an end.

The active part of the Court’s year, when it hears cases and announces its decisions, begins, by law, on the first Monday in October. Usually, they are done announcing decisions by the last week in June or early July. Traditionally, many of the big cases come at the end, as Allen v. Milligen did. There are more to come, including one that would not have made the list of most important cases at the start of term, but may have taken on an outsize significance in the minds of the special counsel’s team, when they chose Florida as a venue for charging Trump in the Mar-a-Lago case. The question in Smith v. U.S. is “[w]hether the proper remedy for the government’s failure to prove venue is an acquittal barring reprosecution of the offense . . . or whether instead the government may re-try the defendant for the same offense in a different venue[.]” In other words, whether the penalty if the government brings a prosecution in the wrong district is dismissing the case for all time.

It’s impossible to consider the Court’s decisions this term without contemplating whether there will ever be a resolution of the appalling ethics situation on the Court, which, unlike the rest of the federal judiciary, is not obligated to follow a code of conduct. Each Justice is free to follow their own dictates. The situation with Justice Thomas, whose financial arrangements with his post-appointment to the Court new best buddy Harlan Crow are now well known, has never been properly addressed.

Today, the Senate Judiciary Committee met to discuss what steps Congress might be able to take and whether it would be constitutionally permissible to impose a code of ethics on the Supreme Court. Senator Sheldon Whitehouse (D-RI) said at the hearing that the Senate would persist in efforts to bring ethics reform to the Supreme Court. But finding a way to do that may prove challenging. The Court sits atop a coequal branch of government, and the separation of powers may prohibit Congress from enforcing a code of conduct against the Court. Even if they find a path forward, it would require bipartisan agreement to put it in place—something that’s in short supply at the moment and unlikely to emerge when the criticism involves conservative justices. Justices Thomas and Alito haven’t even bothered to file their financial disclosure forms this year, one of the few requirements justices are required to comply with. They’ve both applied for extensions.

The Roberts Court seems to lack the depth of leadership that has permitted the Court to understand and evolve when challenges emerged. Its credibility is essential since it decides the most contentious issues in our society. True reform may only be able to come from the court itself. They are led by a chief justice who’s said the most difficult decision he’s made on the Court was when he built a fence around the court following the Dobbs decision. You’d think it might have been stripping women of their rights or something like that. But if Roberts is worried about appearances and fences, perhaps he’ll put some thought into adopting a code of conduct and figuring out how to enforce it. While he’s at it, maybe he’ll recognize how important it is for Americans to be able to watch the criminal trial of the former president, instead of being locked out of the halls of justice. If Roberts really is an institutionalist, it’s time for him to protect the future of the institution—and of the country.

We’re in this together,

Joyce

p.s. It has been a week! Thanks to all of you for your comments, your thoughtfulness and your willingness to engage on issues as they are developing. Special thanks to those of you whose paid subscriptions permit me to devote the time and resources necessary to stay on top of things during these interesting time we are living through.