Brett Kavanaugh's sneaky, underhanded new voting rights opinion, explained

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Mark Joseph Stern
@mjs_DC
·
Feb 8, 2022
Two important pieces further explaining the danger and dishonesty of Brett Kavanaugh's opinion last night.

First, from @steve_vladeck, explaining how Kavanaugh's defense of the shadow docket "gives up the game":

slate.com
Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming
Without argument or explanation, the justices just keep changing the law.

Mark Joseph Stern
@mjs_DC
Second, from @imillhiser, explaining how Kavanaugh's novel theory of the Purcell principle "would strip the federal judiciary of much of its power to protect voting rights" by creating new burdens on plaintiffs "that may be impossible to overcome."
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vox.com
Brett Kavanaugh’s sneaky, underhanded new voting rights opinion, explained
The Court’s median justice just made it much harder to stop attacks on the right to vote.
3:52 PM · Feb 8, 2022

Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming

https://slate.com/news-and-politics/2022/02/the-supreme-courts-shadow-docket-rulings-keep-getting-worse.html

On Monday, by a 5-4 vote, the Supreme Court reinstated the proposed congressional district maps in Alabama that two different lower courts had held diluted the power of Black voters in violation of the Voting Rights Act. The ruling is temporary — the Justices agreed to take up Alabama’s appeal of the lower court rulings in their October 2022 term. But as election law scholar Rick Hasen has noted, Monday’s decision has both immediate short- and long-term effects: Alabama’s racially gerrymandered maps will now be used at least through the 2022 midterms, and the justices have made it harder for any plaintiffs to bring Voting Rights Act challenges to congressional redistricting.

Monday’s order came on what University of Chicago law professor Will Baude has dubbed the “shadow docket” — the unsigned, unexplained orders that comprise a majority of the Supreme Court’s workload. As I’ve documented, although the court has always had a shadow docket, in the last five years we have seen dramatic changes in exactly what the court uses it for. The changes have not been for the better. Indeed, Monday’s ruling is a perfect illustration not just of how the shadow docket has changed, but why those changes are increasingly indefensible: The court routinely flouts its own procedural standards to change substantive law in unexplained, and inconsistent rulings.

Yesterday, the Supreme Court was asked to decide whether to issue a “stay” of the two lower-court rulings in the Alabama cases while Alabama appealed them — a move that would have prevented the lower-court decisions from going into effect. The lower courts had blocked Alabama’s maps on the grounds the state had willfully refused to create a second majority Black congressional district, instead divvying up Black neighborhoods to inflate white residents’ voting power. Stays are supposed to be an “extraordinary” remedy meant for extraordinary cases — where three different things are true: First, the party seeking a stay must be likely to win their appeal. Second, it must be the case that not freezing the lower-court ruling while it is appealed would cause the appealing party “irreparable harm,” that is, harm that a successful appeal could not adequately remedy. And third, the public interest — to both the parties and society at large — must be served by such relief. What this test hopefully drives home is that stays are (supposed to be) rarely granted, and are (supposed to be) limited to cases where lower courts didn’t just err, but erred in ways that cause immediate, harmful effects to the party that lost.

We can’t know how a majority of the Justices applied these factors to the Alabama cases. Only Justice Brett Kavanaugh (joined by Justice Samuel Alito) wrote to explain his rationale. But what he wrote was not exactly reassuring. First, Kavanaugh suggested that the normal rules for stays don’t apply because these are election cases, and election cases are covered by a different rule known as the “Purcell principle” (also articulated on the shadow docket) that federal courts should not block election rules on the eve of elections. Thus, to Kavanaugh, the burden was on the plaintiffs to show that “the underlying merits are entirely clearcut” in their favor in order to win in the district court. And by his reasoning, the fact that there is even some question on the merits of the case justifies freezing the district courts’ rulings. But there’s one critical problem with this line of thinking: the election in Alabama is still nine months away. Even the primaries are in late May. It’s hard to see how district court rulings in January even implicate that (contestable) principle, unless the court has silently expanded it to swallow all election cases.

*snip*


The Supreme Court’s newest attack on voting rights, explained

https://www.vox.com/2022/2/8/22922774/supreme-court-merrill-milligan-alabama-brett-kavanaugh-racial-gerrymandering-voting-rights-act

On Monday night, the Supreme Court handed down a deeply alarming decision that suggests that the Court’s Republican majority is about to cut away one of the few parts of the Voting Rights Act that it hasn’t already gutted or killed.

The immediate impact of the Court’s 5-4 decision in Merrill v. Milligan is that Alabama’s new congressional maps, which a three-judge panel that includes two Trump appointees determined to be an illegal racial gerrymander, will take effect in the 2022 election. Under those maps, only one of the state’s seven districts — or 14 percent of the US House seats — has a real shot of electing a Black lawmaker. African Americans make up about 27 percent of the state’s population.

The lower court ordered the state to draw at least two districts “in which Black voters ... have an opportunity to elect a representative of their choice.” Thus, had the lower court decision taken effect, it is likely that the racial composition of Alabama’s congressional delegation would closely match that of the state as a whole.

Monday’s order only suspends the lower court’s decision until the Court can give this case a full hearing. But the allegedly racially gerrymandered map will be in effect for the 2022 election — and it could become permanent after the Supreme Court hears and decides the full case.

One reason the Court’s order in Merrill is disturbing is that Alabama’s lawyers offered an exceptionally weak legal argument when they asked the justices to block this lower court order. Their argument could potentially neutralize an important safeguard against racist gerrymanders. The Voting Rights Act provides fairly robust protections against racial gerrymanders — legislative maps that target voters of a particular race — but Alabama asked the Supreme Court to impose a new burden on plaintiffs challenging racial gerrymanders that may be impossible to overcome.

*snip*

[LetMyPeopleVote]

1. Opinion: The grim fate of the Voting Rights Act in the hands of the Supreme Court

This opinion only makes sense if the SCOTUS is going to strike down or further gut the Voting Rights Act. With three TFG assholes on the SCOTUS, the Voting Rights Act is doomed. The future of the SCOTUS, Roe v. Wade and the Voting Rights Act was on the ballot in 2016 and now we are seeing the consequences of people not voting for Hillary Clinton

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Will anything be left of the Voting Rights Act after the Supreme Court finishes with it? It’s looking pretty grim. In 2013, the Supreme Court dismantled the part of the law that required states with a history of discrimination to get approval for changes to election rules. Last year, the court all but eliminated minority voters’ ability to use another part of the law to challenge discriminatory voting restrictions. Now, the court has signaled its interest in frustrating the law’s aim of ensuring that minority voters are adequately represented.

The justices acted in a case from Alabama, where African Americans account for 27 percent of the population but a new map features just one Black-majority district among the state’s seven congressional seats. A panel of three lower court judges (including two Trump appointees) found that the map violated Section 2 of the Voting Rights Act and told the state to create another district where Black voters can elect the candidate of their choice.......

Nevertheless, the court’s conservative majority might be poised to rewrite Section 2 in the way that Alabama proposes. Justice Brett M. Kavanaugh, in a concurrence joined by Justice Samuel A. Alito Jr., said that the outcome of the case was not “clearcut” in favor of those challenging Alabama’s map. That can only be true if the court is preparing to transform the law.

More ominously, Chief Justice John G. Roberts Jr., while voting to leave the lower court order in place, flagged the only lower court decision to have embraced Alabama’s position, along with the article I co-authored examining the implications of that approach. The message is clear: The court’s conservatives are seriously considering a race-blind interpretation of Section 2 that would neuter its effectiveness.

Like Roe, it appears that the SCOTUS is going to gut or kill the Voting Rights Act.