Courts

Supreme Court Shadow Docket Just Throwing Darts At Democracy At This Point

Consistency? LOL.

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voting election gerrymander

(Image via Getty)

The knock on the shadow docket is that making hasty “emergency” decisions without full briefing or argument tanks the Supreme Court’s already non-existent credibility. The case for the shadow docket is that if anyone actually got to see these decisions in full light, it would deal an even bigger blow to that credibility.

It seems like only last month that the conservative majority of the Supreme Court said America was “too close” to another election to reject Alabama’s redistricting maps despite glaring Voting Rights Act issues. Only a couple weeks ago, the Court refused to hear GOP challenges to North Carolina and Pennsylvania maps.

At least some segment of swing justices, represented by Kavanaugh, seemed transfixed by the idea that Purcell required them to let the chips fall where they may on maps for the time being — regardless of complaints valid or frivolous. It’s a stupid standard, but if you squinted really hard it almost looked like an even-handed approach.

But consistency is the hobgoblin of justices who aren’t halfway through a 30-rack, so now that we’re closer to the next election, the Court decided to toss the Wisconsin Supreme Court’s approval of Wisconsin’s new maps because… wheeeeee! Nothing matters!

And if someone tries to spin “well, these are state legislative maps and not federal legislative maps” as a cogent distinguishing factor for the Supreme Court to be more interventionist over state law, I’m just going to toast that level of audacity.

The maps aren’t technically struck down; the per curiam opinion sent the case back to the Wisconsin Supreme Court for another look. The state supremes had decided that the additional majority-minority district included in the new map — a product of population shifts — may not have been required by the Voting Rights Act, but was also not likely prohibited. Given that the record at this juncture tended to support the need for a new district, they approved it and left the door open for a future challenge.

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The majority of the U.S. Supreme Court said the Wisconsin Supreme Court needs to revisit that to respond to a number of technical questions that didn’t even matter to the original opinion.

Because the the VRA inquiry amounted to a preliminary side issue in that opinion. Wisconsin made its choice under the standard of adopting the map that made these least change from the prior map, so it didn’t need to get into these issues at the time.

As a reminder, applying that “least change” standard to the decision is something the plaintiffs asked for. The state GOP went aggressive and offered a re-raise on its already comically gerrymandered map — a map that already landed before the Supreme Court — hoping to hit a figure that offered the least change from its old map. Except the new Dem map actually did a better job of hewing to the old GOP one. Oops.

And that’s the thing… the map at issue is actually wildly gerrymandered in favor of the state GOP! But it does have one more district that would allow minority voters to potentially elect a state representative that would spend their whole term in office losing floor votes by a roughly 61-38 margin. And that’s ONE MINORITY REP TOO MANY FOR THIS SUPREME COURT!

Justice Sotomayor, joined by Justice Kagan, questions how Wisconsin was supposed to address the majority’s questions when those standards are being posed for the first time and didn’t matter to the original opinion:

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Applicants now assert that the Wisconsin Supreme Court misapplied this Court’s precedents in its preliminary assessment of whether the Governor’s map violated the Equal Protection Clause. The Court agrees and summarily reverses. In doing so, however, the Court assumes the answers to multiple questions that our precedent leaves uncertain.

In other words, the Wisconsin court is getting knocked for not preemptively divining standards from the Supreme Court’s nebulous “Section 2 of the VRA means whatever it takes to keep Black people from voting” doctrine. It’s the “how many fingers am I holding up behind my back?” routine and plays not entirely unlike the sort of literacy tests the Voting Right Act intended to end.

The dissent also wonders what the hell happened to all the restraint the Court had over the prior 30 days:

This Court’s intervention today is not only extraordinary but also unnecessary. The Wisconsin Supreme Court rightly preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge in the proper forum. I would allow that process to unfold, rather than further complicating these proceedings with legal confusion through a summary reversal. I respectfully dissent.

Running democracy through an unelected lifetime aristocracy answerable to no one with the power to issue arbitrary opinions under its self-determined “emergency” powers is awesome!

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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