Justice Jackson refuses to accept the idea that her choice to “run out the clock” could be motivated by partisan aims.
In most political quarrels, there tends to be a line of reasoning that benefits the left and another that favors the right. A familiar rhetorical tactic is to claim that one side is genuinely neutral while the other is partisan. In theory, these claims should carry little weight because neither side is truly neutral. Yet in various branches of the law, liberal institutional asymmetries exist—legal doctrines that position the liberal stance as the neutral baseline.
One of the most conspicuous asymmetries used to be (in the past) the Voting Rights Act. I wrote in October:
Because African American and Hispanic voters tend to back Democratic candidates, Democrats stand to gain from VRA challenges. In contrast, White voters generally support Republican officials, so Republicans stand to gain less from VRA challenges. What follows? Gerrymandered southern districts drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered northern districts drawn by Democratic legislatures are far more likely to survive.
Callais eliminated this asymmetry. Henceforth, absent evidence of purposeful discrimination, racial minorities will no longer experience an electoral boost through the VRA. The consequences of Callais, along with Students for Fair Admissions, are that the government cannot adopt “benign” classifications to “assist” racial minorities. I use quotation marks because I doubt such classifications actually aided the people they claimed to help. Moreover, all classifications are zero-sum by nature, and helping one race comes at the expense of another. The post-Callais landscape may provoke a realignment of political power in the South that is hard to predict. Gingles froze 1980s politics in place. Indeed, many veteran members of opportunity districts have served that long. Going forward, Black people will no longer be shuffled about to maximize Democratic districts.
Now, as Justice Thomas wrote in Allen v. Milligan, we will have a system where “the minority simply cannot elect its preferred candidates; it is, after all, a minority.” The neutral rule is not that federal courts draw oddly shaped districts that group Black voters together for no other reason than their race. Decades of VRA litigation have conditioned us to view Gingles as neutral. It is not. Instead, the neutral rule is that the demographics with fewer voters have a harder time electing their chosen candidate. Callais reasserted that neutral rule.
The aftermath of Callais further reveals this distorted notion of neutrality. The private plaintiffs asked the Supreme Court to issue the judgment immediately. Last week, I noted that the timing of the judgment is irrelevant. There is no injunction preventing the implementation of new maps. Yet the plaintiffs requested the judgment to be issued forthwith.
The per curiam order granted the motion to issue the judgment forthwith:
To permit the losing party time to file a petition for rehearing, the Clerk of Court ordinarily waits 32 days after the entry of the Court’s judgment to send the opinion and a certified copy of the judgment to the clerk of the lower court.Sup. Ct. Rule 45.3. This period is subject to adjustment; the default applies “unless the Court or a Justice shortens or extends the time.” Ibid. The Callais appellees have asked for the Clerk to issue the judgment forthwith so that “in the event of a judicial remedy,” the District Court may “oversee an orderly process.” App. 3. Appellant Louisiana does not oppose this application. And while the Robinson appellants oppose it, they have not expressed any intent to ask this Court to reconsider its judgment. Thus, the application toissue the judgment forthwith presented to JUSTICE ALITO and by him referred to the Court is granted.
The judgment is issued after 32 days to allow the losing party time to seek reconsideration, but that rule can be waived if there is good cause. In Callais, those seeking expedition provided good cause. Those opposing expedition made a strategic miscalculation. When the non-African American plaintiffs sought to issue the mandate forthwith, the African American plaintiffs should have concurrently filed a motion for reconsideration. On what grounds, I don’t know, but they could have filed something. That would at least have triggered another round of (pointless) briefing, and given the Court a rationale to not issue the judgment forthwith. But the African American plaintiffs did not take that route. Instead, they simply opposed the issuance of the judgment. The Supreme Court saw through their bluff.
Justice Jackson, however, authored a sharp dissent. She almost attacked the majority for partisanship.
These post-Callais developments carry a strong political undercurrent. Louisiana’s hurried reaction to the Callais ruling unfolds amid a continuing statewide election, against the backdrop of a heated redistricting battle among state governments that appear to act as surrogates for their favored political parties. And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party’s objection only twice in the last 25 years. See Whole Woman’s Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as usual, refrain from taking a position by following our default procedures. But, today, the Court chooses the opposite.
Jackson wraps up:
The Court frees itself from both constraints today and jumps into the fray. And with that, those principles give way to power. Because this departure is unwarranted and unwise, respectfully, I dissent.
Justice Alito replies in a concurrence, joined by Justices Thomas and Gorsuch. Alito argues that Jackson’s accusation is “baseless and insulting.” The reason, he says, is that Jackson is so quick to accuse conservatives of partisanship that she refuses to entertain the possibility that her own view might be motivated by politics.
The second justification offered by the dissent is to let the 32-day period run out in order to “avoid the appearance of partiality.” Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on blind obedience to Rule 45.3’s default deadline does not create the appearance of partiality (by letting the clock run out) on behalf of those who might find it politically advantageous to have the election proceed under the unconstitutional map.
The Republicans want the judgment issued immediately, while the Democrats oppose it. The Democrats want to utilize the unconstitutional maps, and the Republicans want fresh maps. Why should it be that only the Democrats appear neutral while the Republicans act in a partisan fashion? I believe both sides pursue their own interests. Therefore, a ruling that benefits the left cannot be labeled “neutral” while a ruling that benefits the right is described as “partial.”
Again, Jackson does not explain why declining to issue the judgment is the partisan rule. The rules permit issuing the judgment when there is good cause, and when the losing party has shown no indication that it will seek reconsideration, there is no good reason to wait.
Alito adds that failing to act to curb the appearance of partisanship is, in fact, partisan.
The dissent goes on to claim that our decision represents an unprincipled exercise of power. See post, at 4 (“And just likethat, those principles give way to power”). That charge is groundless and utterly irresponsible. What principle has the Court violated? The principle that Rule 45.3’s 32-day default period should never be shortened even when there is good reason to do so? The principle that we should never take any action that might justifiably be criticized as partisan?
We should carve away the phrase “Equal Justice Under Law” from the Supreme Court’s portico and chisel a different testament into marble. The Court’s rulings that I find most troubling often stem from a lack of courage rather than a flaw in legal doctrine. Judges who fear criticism for partisanship simply defer to liberal conceptions of “neutrality.” Perhaps Callais will harden the Court to resist this progressive trap. The left is effectively gaslighting conservatives about what neutrality entails. True neutrality means applying the law without fear or favoritism toward either side.
