Per Stern's article the Court adopted the McConnell rule: no interference with redistricting in an election year. The case came to the Court in January, 3 months before the state (Alabama) primary, 9 before the midterm election. Too close, the Court held, and stopped enforcement of the VRA (which bans racial gerrymandering).Mark's piece gets into this, but it's not just the 5-4 ruling in Merrill v. Milligan; it's that #SCOTUS did this without *any* majority opinion.
— Steve Vladeck (@steve_vladeck) November 9, 2022
Control of the House in the 118th Congress could easily end up being determined by an unsigned, unexplained grant of emergency relief. https://t.co/pkJle6nFYH
The interesting point is not the lack of a majority opinion, but the vileness of the opinion. The trick here is the Court would have a hard time ruling against the VRA on this point because racism is a “pernicious category” in the law, and the courts cannot enforce racist laws or provisions in contracts (or racial covenants in deeds). Racial gerrymandering ain’t affirmative action, in other words. The Court can’t ban racial gerrymandering as racially motivated or unfair to a class of persons. So the courts give the states a Get Out Of Jail Free card.
File suit and overturn the districts after the election. The state then simply redistricts with a law that takes effect in the next election year. A bit inconvenient, but perfectly legal. And racially gerrymandered, but…what’re ya gonna do?
It’s some catch, that Catch-22.
I was able to listen to just over half of the SCOTUS arguments for the college admissions case. It's clear that the conservative majority will again ignore the actual facts of the case to reach the conclusion they want. The liberals kept pointing out that race was only one factor of many in the decision making process, the majority will of course write an opinion that it was the only factor. They will also ignore the point made several times that colleges that eliminated race as even a factor had substantial plunges in the numbers of black students admitted.
ReplyDeleteWhat struck me was the more subtle way this plays out, and maybe even hints at the possible outline of race not only for college admissions, but in any process including racial gerrymandering. One of the liberal judges pointed out (my apologies for not recognizing most of the justice's voices, only Thomas' and Barret's voices are sufficiently distinct that I can tell other than gender based on pitch) that if race is banned from any consideration, this would be the outcome. (My best recollection of the point, not verbatim) A student could say they want to attend UNC because their family had attended for four generations and they wanted to be part of that heritage. That could be considered. Another applicant could point out that their family has lived in NC since his family was slaves, no one has ever attended UNC and they would want to honor them by attending. That student's statement could not be considered. I will also add in the case of student one, part of that family history of attendance was when only whites were allowed. You could make up many more hypotheticals based on other applicants racial backgrounds that would also not be allowed for consideration, yet the white student gets the benefit. What particularly made me notice this point, was follow on discussion around considerations of other factors that could substitute for race and would also not be permitted. So having great-great grandparents that were slaves would not be acceptable since slavery is so closely tied to race. My strong suspicion is the decision will contain language about also banning substitutes. Unsympathetic conservative courts will have plenty of ammunition then to strike down many efforts to in other ways consider students backgrounds. Only the most neutral efforts will withstand scrutiny, such at the top 10% of all classes are guaranteed admission to a state university. If anywhere in a legislative history someone mentions diversity or helping minorities, then for everything else a court will have an excuse to count that factor as a racial substitute and strike it down. (I would also like to point out that I was correct when I said the right wants to weaponize Brown v. Board of Ed. In the first minute of argument from the lawyer arguing for the plaintiffs, he brought of Brown as justification to strike down any racial factor).
Turning to the gerrymander cases, they turn on disparate racial impact. I think those cases will fail because the conservative court will hold that racial substitutes are not an issue as long as they are not explicitly racial. So for the gerrymander cases, if you are hurting Democrats, that is ok. The fact that blacks are overwhelmingly Democrats is irrelevant. As long as there is at least some way to view the outcome as racially neutral, then disparate outcome is irrelevant. So, anything that helps minorities will be subject to the strictest scrutiny, and anything that hurts them will be allowed if there is any way to cast it as race neutral, even with an overwhelmingly disparate outcome.