In law if not also in spirit, gerrymandering claims hold a special place in the Supreme Court’s docket. The general rule is that the justices have full discretion to decide which cases they want to hear, but redistricting disputes are different: The court must hear them, unless some other legal defect exists that prevents the court from doing so. Back in October, Chief Justice John Roberts illustrated the point when he worried that this so-called “mandatory jurisdiction” could lead to a flood of appeals in, say, the partisan gerrymandering context. “We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board,” Roberts said then, emphasis mine.
It’s now late June, and with only a few cases remaining to be decided before the justices leave town for the summer, a 5-to-4 conservative majority on the Supreme Court has chosen to hand down a decision in a contentious racial gerrymandering case from Texas. Even though it didn’t have to. Even though a lower court had found that a number of congressional and state legislative maps had been drawn with discriminatory intent, had a racially discriminatory effect, or were unlawful under the Voting Rights Act. Even though last summer the same conservative majority aggressively intervened to prevent any remedial maps from even being considered.
One possible explanation for the Supreme Court’s keen interest in anything at the intersection of race and the manipulation of district boundaries — an area already governed by a less-than-intuitive body of law — is that it’s sensitive to the suggestion that Republican-drawn maps, and the lawmakers who drew them, discriminate on the basis of race. How dare anyone suggest that Texas, which until 2013 had to seek permission from the Department of Justice to move forward with any changes to its voting procedures, would attempt to short shrift minority voters. Or pass a voter ID law that one federal judge compared to a poll tax. Or raise hell in court to keep Dreamers from living in peace under Donald Trump’s reign of terror on immigration.
To Justice Samuel Alito and his conservative cohorts on the Supreme Court, the lower court that decided Abbott v. Perez in the first place made “a fundamental legal error” that needed to be corrected. It is not up to Texas to demonstrate that maps that had previously been declared unconstitutional were now free of any racial animus. No, sir: “The 2013 Legislature was not obligated to show that it had cured the unlawful intent that the court attributed to the 2011 Legislature,” Alito wrote. Past discrimination by one set of lawmakers, it turns out, is not evidence of new discrimination by a different lawmaking body. And so it’s up to the voters challenging maps that burden the rights of people of color to make the case that the new legislature intended to do just that.
Alito calls this “the presumption of legislative good faith,” under which the government is given the benefit of the doubt and not required to “purge the bad intent of its predecessor.” As if to say, our elected officials always act in our best interests and any prior bad acts shouldn’t be imputed to future conduct. “Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” Alito writes.
If you’re wondering why this analysis matters, try to think of another high-ranking government official with a rather big perch whose policy-making largely mirrors his apparent views on racial or religious minorities. Does anyone come to mind? Here’s a clue: He too has gotten sued left and right for injecting those views into his executive orders and other actions. That’s right: The very president of the United States is now in the same boat as the Texas legislature — trying to make the case that his travel ban was not “tainted” by Islamophobia. Rather, his argument goes, his ban was a lawful, dispassionate exercise involving multiple agencies and administration officials acting in the best interests of the nation. The Supreme Court should stay far away from “judicial psychoanalysis of a drafter’s heart of hearts,” the Trump administration has insisted.
So Alito could well be previewing the outcome in the contentious travel-ban controversy, where Trump has tried to contend that anything he said or did during the campaign was just a politician exercising his First Amendment rights, and that none of that can be attributed to his presidency. Those failed attempts to impose a wholesale ban on Muslims from entering the United States, which courts across the country stopped dead in their tracks? They’re in no way indicative of the newest travel ban (one that’s admittedly softer than previous versions). In Alito’s view, proof of a “change of heart” shouldn’t be the government’s burden to bear.
All of this is unacceptable to Justice Sonia Sotomayor and the Supreme Court’s more liberal members. One key difference between Sotomayor and Alito is that she was a trial judge and he was not, and so she has a sense of the painstaking process of finding facts and assessing the weight of evidence in complex trials. “The majority does not meaningfully engage with the full factual record below,” she writes, an assertion that seems to have gotten the best of Alito, who then feels the need to respond in a footnote: “The dissent seems to think that the repetition of these charges somehow makes them true. It does not. On the contrary, it betrays the substantive weakness of the dissent’s argument.”
These food fights are not uncommon as the Supreme Court nears the end of a term, but they’re especially pointed in the gerrymandering realm, where the cases tend to be factually and legally complex, the politics heated, and the decision-making along ideological lines. No justice likes to be told that they don’t care about voting rights, but in so many words, Sotomayor does exactly that. “Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will,” Sotomayor writes.
The Court today does great damage to that right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters to exercise that most precious right that is preservative of all rights.
(In a short concurrence written by Justice Clarence Thomas, Justice Neil Gorsuch made a bit of news: He endorsed Thomas’s extreme, if lonely, view that the Voting Rights Act can’t be used to police racially discriminatory redistricting plans. Not even Jeff Sessions’s Justice Department, which isn’t exactly friendly to civil rights, endorses that view.)
One irony of Abbott v. Perez is that it arrives one week after the Supreme Court largely ducked the issue of partisan gerrymandering — the drawing of district lines to the benefit or detriment of voters of a particular party. There, Chief Justice Roberts called that type of gerrymandering “an unsettled kind of claim,” and let its contours be defined by lower courts for who knows how long. That’s not a problem with racial discrimination in redistricting. For the Roberts court, this is an area that’s fair and square for bold conservative results, no matter the real-life consequences for voters on the ground or the considered judgment of lower courts that have examined these claims and found egregious violations. Five years to the day since the Supreme Court struck down a key provision of the Voting Rights Act, today’s ruling is more fuel for the charge that the more things change, the more they stay the same.