Alabama had no obligation to follow a vacated order, and retained every right to challenge a district court’s ruling while the Supreme Court works through the matter.
Late on Tuesday evening, the Supreme Court granted Alabama’s emergency motion to redraw its legislative boundaries in light of Callais. The per curiam opinion offers a concise recap of Callais and explicitly extends that doctrine to cases involving vote dilution. The merits discussion is compact, but I want to focus on one pivotal sentence:
As to intentional vote dilution, the District Court did not heed the presumption of legislative good faith, see Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 10 (2024), because it interpreted the State’s legal disagreement with the court’s earlier remedial order as proof of discriminatory animus. Cf. Abbott v. Perez, 585 U. S. 579, 608–609 (2018).
Upon reading the Alabama district court’s order, my reaction was the same: a court’s vacated directive does not suffice to establish discriminatory intent. The Supreme Court’s decision to vacate the district court’s order rendered it void, as though it had never existed. The district court cannot then reframe the failure to comply with its nonexistent order as evidence of animus. I intended to address this point earlier, but the chance did not come. (Thanks, Judge Betsy.) Now is an apt moment.
I’ve written before about the supremacy of the inferior courts, the idea that a single district court can interpret the Constitution for everyone. CASA v. Trump went a long way toward countering this notion by firmly establishing the principle of Supreme Court judicial supremacy. While I have reservations about that aspect of CASA, it is now the controlling law. The Supreme Court’s emergency docket order in Allen v. Milligan further clarifies just how subordinate the lower courts remain.
Litigants, including state governments, should refrain from violating a binding court order. Deviating from such an order would risk contempt, which did not occur here. Instead, the district court directed Alabama to adopt a new map. Alabama chose a map it believed aligned with Supreme Court precedent. The District Court disagreed. The state had the right to pursue that new map, knowing it would face challenges in court, with the Supreme Court ultimately resolving the matter on its mandatory jurisdiction docket. This aligns, more or less, with the points Justice Alito made in the cited portions of Abbott v. Perez.
There was no disrespect for a binding order. Yet, Justice Sotomayor’s dissent repeatedly accuses the state of defying and flouting the district court’s order:
“Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court”
“It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.”
“Second, the Court should not have rewarded Alabama’s defiance of court orders and blatant gamesmanship throughout this litigation.”
“Alabama’s hands, however, are far from clean. Instead, it defied the District Court’s order in these cases even after this Court affirmed it. . . .”
“First, Alabama intentionally chose to flout a preliminary injunction that this Court affirmed in Allen.”
In Sotomayor’s view, Alabama hoped the Supreme Court would side with the state on appeal:
Of course, Alabama had every right to raise its “legal disagreement,” ante, at 3, with the District Court’s original preliminary injunction through the appellate process or otherwise. The course of action the State chose here, however, was not the proper way of doing so. Had Alabama complied with the preliminary injunction and drawn a map with a second opportunity district, it could have relitigated the merits in the ordinary course: first at a trial on the merits, and then on appeal. At either stage, it could have raised the arguments that the litigants in Callais raised and prevailed on, or advanced challenges to the District Court’s remedial order. Instead, Alabama willfully drew a map that flouted the District Court’s preliminary injunction and hoped that this Court would eventually see things its way. After today, it is hard to call Alabama’s cynical gambit anything other than a success, and the Court’s rewarding of Alabama’s behavior anything other than a blow to the rule of law.
Sotomayor also quotes the Speaker of the Alabama House:
The record is bereft of evidence suggesting that Alabama took seriously this Court’s finding of discriminatory vote dilution in Allen. Speaker of the Alabama House of Representatives Nathaniel Ledbetter put it bluntly: “‘If you think about where we were, the Supreme Court ruling [in Allen] was five to four. So there’s just one judge that needed to see something different.'”
This action becomes improper only if one accepts the premise that district courts can resolve these constitutional questions. Yet if one accepts CASA that the Supreme Court stands above all, then Alabama’s actions represent the only route to test the validity of new maps. And litigants are within their rights to hope that a 5-4 outcome at one stage of litigation could swing to 5-4 in the opposite direction at another stage. Dobbs reached the Supreme Court because Mississippi sought to challenge Roe. Callais reached the Supreme Court because Louisiana sought to test Gingles. And Allen made multiple trips to the Supreme Court for comparable reasons. Justice Sotomayor’s reasoning on this point is not persuasive.
