No Price for Defiance
Terry H. Schwadron
Sept. 22, 2023
This week, Alabama filed an emergency appeal with the U.S. Supreme Court, essentially asking for a new hearing of the redistricting case it lost three months ago.
Specifically, the pitch came hours after a federal district court refused a request for a stay in the redistricting case in which Alabama has refused to follow the Supreme Court’s order.
The three-judge district court panel that had ruled congressional districts improperly gerrymandered just last week blocked Alabama’s new court-ordered 2023 map because, like its predecessor, the redrawn map kept Black majorities into one district rather than two.
In practical terms, Alabama is being given a new at bat in the case, possibly using a new argument, rather than facing punishment for snubbing the courts.
Indeed, journalists have written several articles questioning why and how the Supreme Court would act against a state that had refused its rulings.
At best, the appeal in this case, known as Allen v. Milligan, is an audacious request for permission to defy the court itself.
As legal reporters for Slate noted that Alabama legislators and state officials have defied meticulous instructions in map drawing along racial lines that drew rebuke from the trial court. The new state filing claims that the Supreme Court decision in the case didn’t in fact mean what it said it meant.
Indeed, the reporters suggest that the new Alabama appeal will be written using language from a concurring opinion by Justice Brett Kavanaugh to win his vote — with the goal of overturning a Supreme Court decision just three months old.
Money and Signaling Links
In a MSNBC interview on Tuesday, Dahlia Lithwick, one of the Slate reporters, cited reporting to link partisan fund-raising groups involved in promoting appointment of conservative judges willing to overturn precedents to the outcome of this and other cases.
The Alabama Political Reporter reported that Alabama decided to defy the Supreme Court “has been driven by nationally connected political operatives at the center of the well-documented right-wing effort to reshape the composition and jurisprudence of the Supreme Court and to overturn the remaining key protections established by the 1965 Voting Rights Act.”
Lithwick argued that there is an emergent convergence between concerns about ethics and gift reporting among Supreme Court justices and communications about the outcome of cases. At the minimum, she argued, the time between indirect messages contained in dissents and concurrent Supreme Court decisions inviting further cases and the arrival of exactly those cases before the court has collapsed.
In this Alabama district mapping case, for example, the concurrence by Justice Kavanaugh, the determinative fifth majority vote, signaled to the lawmakers that he’d be open to deciding the matter in their favor on a different theory that was neither briefed nor argued.
“Things might come out differently, he wrote, winkingly, if they came back armed with the argument that “even if Congress in 1982 could constitutionally authorize race-based redistricting” under the Voting Rights Act “for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future,” Lithwick and Mark Joseph Stern argue.
In other words, Kavanaugh was signaling that sometime in the future it could be that we now longer need to protect that portion of the voting rights act that governs race.
“Alabama legislators reasonably think Kavanaugh’s in the bag based on ‘intelligence’ that’s either an inside source or a straightforward reading of his (Alabama) concurrence. So they refused to follow the directives of the court in the hopes that in this go-round, they win,” wrote Slate.
Worsening Trust Issues
The Supreme Court is starting its new term amid calls for ethics investigations and trust issues over its handling of precedents that are running away from public opinion. Add a new issue of what to do about a state that defies a ruling.
Sen. Sheldon Whitehouse, D-RI, is not halting in his zeal to pursue unethical gift reporting and possible tax violations involving selected justices or the wealthy donors providing vacations, houses, travel, and donations to spouses. If anything, he is pressing for Justice Department or Judicial Conference follow-up.
In addition, a Democratic-majority Senate Judicial Committee is highly focused on the sprawling, well-funded private network that seeks to identify, advance, and lobby for conservative judicial candidates.
Plus, this right-leaning Supreme Court majority shows no hesitation in challenging precedents and pursuing what comes across as a partisan lean in deciding cases involving voting rights, gun ownership, the power of federal agencies, the role of religion in public life, as well as issues touching on race and identity,
In that context, the apparent practice of searching judicial opinions as a signaling source for the next rights challenge seems worth more than passing consideration.
##