Alito Writes Again

Here’s the headline: Today, the Supreme Court, In a 6-3 decision split along conservative-liberal lines, reversed the lower court and approved a South Carolina congressional map that the district court previously found was an unconstitutional dilution of Black voting power. The case is Alexander v. South Carolina State Conference of the NAACP. The Supreme Court signed off on the map, holding that the plaintiffs failed to establish that South Carolina’s Republican-controlled legislature relied improperly on race when it drew its map. The map passed muster in the majority’s view because it was a politically motivated gerrymander, not a racial one.

Justice Alito, who wrote the majority opinion, concluded that “[I]nferring bad faith based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated” would allow plaintiffs to succeed in making race-based claims when a gerrymander was partisan in nature.

Legal background: In a 2019 U.S. Supreme Court case, Rucho v. Common Cause, the Court held it would not consider whether the election maps drawn by a state were a political gerrymander. It held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. After Rucho, federal courts can only consider whether electoral maps are an illegal racial gerrymander.

So, the South Carolina legislature acknowledged and even embraced the political nature of the clearly gerrymandered map it adopted. Plaintiff voters argued it was a racial gerrymander poorly disguised as a partisan one to escape judicial review. Despite persuasive evidence that was the case, the Court permitted the politically repressive structure to remain in place.

You can read the full decision here.

The decision is consistent with what we expected after oral argument. At the time, it seemed clear that at least five Justices would take this view. You may find it helpful to review our discussion following oral argument, which lays out the issues that were before the Court in some detail.

Legal Defense Fund Attorney Leah Aden, who argued the case for the plaintiffs, on her way out of Court after oral argument

This decision is problematic because it gives anyone who wants to gerrymander, Republican or Democrat, the roadmap for getting away with it. Cloak it in politics, just say that’s the reason you made the decisions you did, and you are good to go. That may, coincidentally, make Justices Alito and Thomas’ wealthy friends happy, but it does not serve the principles of democracy upon which this country was founded.

It’s important to be fair and note that Justice Alito was not alone in this case. He was joined by five other justices—the decision was 6-3. Even without his involvement, the votes were still there for this result. And, there can be good reasons for courts to avoid interfering in purely political decisions.

To be clear, I strongly disagree with Justice Alito’s opinion. It echoes back to Chief Justice Roberts’ voting rights opinion in Shelby County v. Holder, where he asserted that discrimination against Black voters was no longer a problem because of advances society had made. Justice Alito, here, seems more concerned about a state legislature’s decisions being characterized as racist than he is with the possibility that the legislature is acting in a racist way.

But my personal view isn’t the point: this situation illustrates the problem with the loss of public confidence in the Court. This case is about voting, it’s about whether politicians who are in control at the moment can rig the system by drawing election maps that permit them to retain control in future elections, even when they become a minority, by gerrymandering. In this case, the Republican majority that includes Justices Alito and Thomas ruled consistently with the views of powerful people from whom they have accepted favors. Inevitably, that means people will question the decision. Is it fair? Is it about following the law in a difficult case? Or is it about favoritism and the return of favors?

South Carolina Representative James Clyburn expressed his view of the decision on Twitter

That’s why judges’ and especially Justices’ behavior must remain above reproach. It’s not about them, it’s about the institution and the integrity of our democratic institutions. Justices should not sacrifice the public’s confidence in the Supreme Court by indulging their personal grievances. Among the Judicial Canons of Ethics that cover the conduct of all federal judges other than the Supreme Court are the following:

• “A Judge Should Uphold the Integrity and Independence of the Judiciary: An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

• “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

  (A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

  (B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment … ”

• “A Judge Should Refrain from Political Activity … A judge should not …make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.”

These are sensible rules that are not unduly restrictive, designed to ensure the public’s ability to have confidence in an independent judiciary. Judges who are appointed to life tenure in these important and powerful roles voluntarily agree to abide by these restrictions, and they take an oath to uphold their obligations. These rules don’t come as a surprise to any judge. Justice Alito served as a Court of Appeals Judge in the Third Circuit for 16 years, where he was bound by these ethical cannons. It’s not like he doesn’t understand why and how this works.

Alexander is about a racial gerrymander hiding in plain sight as a political one. The Court decided the case in a way that makes it very difficult to prevail on a racial gerrymandering claim, even in egregious circumstances. It’s easy to see how Black voters in South Carolina who are faced with diminished voting power, and others who care about voting rights, are left with the distinct feeling that something is wrong in South Carolina. And on the Supreme Court.

After the oral argument last October, I wrote, “So, while the issue in Alexander is whether South Carolina map is an unlawful racial gerrymander, the real issue is whether the Supreme Court is willing to protect the rights of voters.” A Court that is going to decide such weighty issues and have its decision respected and followed must be above reproach. This Court no longer is.

That’s why it’s essential to fix the Court’s problems, even if finding a fix is challenging.

Last November, Rhode Island Senator Sheldon Whitehouse proposed an ethics fix. He explained, "The honor system has not worked for members of the Roberts Court. My ethics bill would create a transparent process for complaints .... " The problem has only grown worse since then. This week, Senator Whitehouse took to Twitter to urge people to support his Supreme Court Ethics, Recusal, and Transparency Act. “There’s a common thread here: no investigation. No interviews, no statements, no reports, no nothing. No one ever asks justices what the facts are. Justices speak in right-wing media or leak through sources, but no official statements where you tell the truth or face penalties,” he wrote.

Forty-five House Democrats sent Justice Alito a letter earlier this week, demanding he recuse from January 6 cases. He will not, but we now know who to support with our votes: officials who are doing what’s right. We can insist that all of our elected officials to back Senator Whitehouse’s bill and refuse to let this issue fade away. The ethics bill must become the law. Even though there are separation of powers concerns, experts at the Brennan Center (where, full disclosure, I have recently become a senior fellow) have concluded that Congress can legislate where SCOTUS is concerned, finding that ethics rule for the Supreme Court would act as “guardrails against corruption and abuse of power in coequal branches of government,” and would “comport with the principle of checks and balances fundamental to our constitutional system.” 

We cannot let this go. We need a court that we have confidence in, not because we expect them to always rule the way we, as individuals, want them to, but because we need to have confidence when they don’t that they are acting in a fair manner and doing justice.

We’re in this together,

Joyce