Decisions today - first up is First Choice Women's Resource center - a first amendment case relating to disclosure of donors by nonprofits, but the real issue was standing. Unanimous opinion by Gorsuch that the organization has standing to challenge the subpoena prior to actual enforcement.
SCOTUS Term 25-26
- Thread starter Aardvark86
- Start date
Yikes...and Callais!!!!! By Alito. In the absence of necessary race base districts to comply with the VRA, race based districts are unconstitutional. And as significantly, 'necessity' under the VRA is limited to remedies for intentional racial discrimination (not disparate impact). This is what Desantis, and others, were likely waiting for. While I'm not sure i buy it, FLA will argue that the clarification in law is the basis for redrawing the districts rather than state prohibited politics.
Surprisingly, only three opinions, one of which is just two pages. I have a feeling reading them is going to devolve pretty quickly into angels dancing on heads of pins.
Bottom line is that you may see some southern states reexamine maps on the theory that their districts were based on mistaken assumptions about when race-based districts were permissible or required
Surprisingly, only three opinions, one of which is just two pages. I have a feeling reading them is going to devolve pretty quickly into angels dancing on heads of pins.
Bottom line is that you may see some southern states reexamine maps on the theory that their districts were based on mistaken assumptions about when race-based districts were permissible or required
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Wonder what bearing if any this might have on the latest rounds of SC redistricting. Whether it was to protect Jim Clyburn or protect the 1st district from flipping again, I suspect there will be challenges coming forth.
Just wow. Took a quick spin thru the two opinions. The court has indeed gutted the vra by effectively requiring that a plaintiff prove that a map can only be explained by current, intentional discrimination (and not by other permissible factors like politics). Without going into too much detail regarding the new standards of proof, the one that really jumps out is that the plaintiff must control for party Affiliation, which may well be impossible given the coherence of black voting patterns when compared with whites. In essence, a plaintiff must now “prove the negative”
Kagans dissent may well be the best of her career, which is saying something, and is well worth a read. It really does describe just what the majority actually did. Long term it would not surprise me if this is compared with scalias Morrison v Olsen dissent
there is a part of me that thinks that the time had come - societally and otherwise - for this opinion, but it frankly reads not unlike the worst of left leaning activist scotus diktats of the 60s, with a sprinkling of sophistry in the reasoning. That’s particularly troubling given that this was a statutory case.
Kagans dissent may well be the best of her career, which is saying something, and is well worth a read. It really does describe just what the majority actually did. Long term it would not surprise me if this is compared with scalias Morrison v Olsen dissent
there is a part of me that thinks that the time had come - societally and otherwise - for this opinion, but it frankly reads not unlike the worst of left leaning activist scotus diktats of the 60s, with a sprinkling of sophistry in the reasoning. That’s particularly troubling given that this was a statutory case.
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Correct me where I am wrong, please. Are you saying that the VRAs time had past? However, the opinion by the majority is problematic and will cause more issues than it solves?
The map in dispute. District 6 is the green district.
I like the ruling because the goverment needs to get out of the business of race. Stop seeing us as Black Americans, White Americans, Brown Americans, and start seeing us all as Americans. Race should not be a legal reason to gerrymander any more than race should be allowed in hiring decisions (i.e DEI). The Civil Rights Act should ensure everyone is treated equally under the law.
Get the government out of the race business, and this is a good start.
I like the ruling because the goverment needs to get out of the business of race. Stop seeing us as Black Americans, White Americans, Brown Americans, and start seeing us all as Americans. Race should not be a legal reason to gerrymander any more than race should be allowed in hiring decisions (i.e DEI). The Civil Rights Act should ensure everyone is treated equally under the law.
Get the government out of the race business, and this is a good start.
But partisan gerrymandering is totes fine....
Sorta-kinda. We are, in fact, a long way from the 1960s in terms of electoral participation, economic and social mobility, empowerment and the like, so to the extent this reins in a lot of the 'historical effects-based' stuff (which doesn't really have a definable temporal endpoint and eventually just devolves into naked proportionality as a governing principle), I'm actually kinda ok with that.
Obviously, intent-based stuff is never acceptable, and so we still need VRA. (And of course, the VRA has lots of continuing relevance outside the redistricting context.) My concern with the majority opinion is that it's made it virtually impossible to make out the intent-based redistricting case in that not only must there be 'current' intentional discrimination, but that the plaintiff must 'prove the negative' that neutral factors didn't predominate. Sorta like saying that "a little" discrimination is ok, which is awfully weird and uncomfortable.
(OTOH, flipping the coin, there's a practical paradox here from a state defense perspective as well. Because of the incredible correlation of black voting and Democratic affiliation, which is really unlike anything else in American politics by orders of magnitude, it becomes awfully difficult for a state to "disprove" a racial inference with respect to actions that may in fact be politically motivated. And I am in the camp of thinking that Rucho was more right than wrong in allowing partisan considerations to justify map drawing.)
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In identity politics is there a potential or justification for political parties to become a protected class? I kid, I think…
Tangentially, I am not in favor of any system that appears intent on silencing a significant number of voices and/or voters.
It seems crazy that maybe 16 years ago, pundits and comedians were predicting the death of the Republican Party post George W. Here we are. Let’s see what tomorrow brings.
That whole "total victory in just one... more... election" theme has been going on for a while now, and on an equal opportunity basis. It's truly laughable. Which, I suppose, tells you something about our actual governance. Something not too pretty.
You should have said the same thing about the Court's ruling on the Texas gerrymander. The Court tried, and hilariously failed, to make the case that the Texas gerrymander had nothing at all to do with race (even though the maps were very clearly drawn to dilute African American voting strength), and instead only concerned partisan politics, so that it was somehow constitutional. What a joke. That ruling won't last very long.
Good luck trying to distinguish "partisan based" from "race based," particularly when you are faced with maps that clearly seek to dilute African American voting power. That Court ruling was, IMHO, a joke.
Well, at least in one direction. But yeah, that’s the real sneaky part of this.
David Heath (@david.heath.writer) on Threads
@esglaude can barely contain his rage over the Supreme Court setting the country back to Jim Crow days. Must watch!
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@Aardvark86 - What do you think history will say based on this decision (and others) with regards to the Roberts Court's legacy? Too early to tell, I would argue.
The other thing I wonder, if this decision will spur congress to reassert itself as a lawmaking body?
The other thing I wonder, if this decision will spur congress to reassert itself as a lawmaking body?
Interesting question. First let me reiterate that I think the biggest legacy will be the reign in of agencies and incentives to strengthen article I as the primary institution for policy.
The race legacy will naturally be complicated. In essence, it will be the court that said we’re not going to do the same thing forever, when we have made progress. We’re going to reorient toward intent based discrimination. Whether that’s a good or bad legacy will depend what we do with it as citizens.
I doubt Congress steps in here, at least until the next one party d rule. In the 80s Congress did push back on a bipartisan basis on the idea that it was time to move on. I don’t see that stomach unless and until someone can identify and stick to a definable endpoint that is more than just rhetorical mush. Our normal political cycles may well think intent focus is enough.
side note - flyers had no business winning that game. Which is what makes the cup playoffs so great.
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This was kind of an interesting take. While a bit much on the cheerleading side, I think it identifies what’s discomforting about the decision.
Jackson did go too far out over her skis here. If a party asks to accelerate the issuance of a judgment and no one's seeking reconsideration, there's not a whole lot of reason to deny it. (Note, there's nothing about this that somehow 'waives' Purcell-based challenges that will surely follow whatever Louisiana does.)
The most acidic part of Alito's concurrence is actually the footnote, which tacitly seems to accuse the dissenting judges of slow-walking their opinions to delay the finalization of the decision, as a response to Jackson's suggestion that they're unfairly accelerating things.
Not a fan of the name calling either way, particularly in a context as trivial as this.
A heads up that after about a week of folks focused on state court litigation, we are scheduled to get opinions tomorrow morning. To review where we are, there are three cases from November outstanding that are relatively mundane (though Rastafarian may be interested in the dreadlock haircuts while in jail case). In terms of the "older" higher profile cases outstanding from December and January, we've got Slaughter and Cook (which eventually I'd bet the chief will write), NRSC (campaign finance and party coordination), Hamm (capital punishment and IQ tests), Little and BPJ (the transgender athlete cases), Wolford (2A Hawaii). Probably a little too soon to expect the more recently argued higher profile cases.
So, a relatively dull preemption case relating to transportation industry to start (Montgomery, unanimous, from justice barrett). And, an equally dull arbitration act case (Jules, unanimouse from Soto).
Note though, we could get an order later today in the mifepristone stay request, as I think the extension may expire at 5..
Note though, we could get an order later today in the mifepristone stay request, as I think the extension may expire at 5..
Orders today...
- a few cases remanded for reconsideration in light of Callais
- denial of cert in drug manufacturers' challenge to medicare drug price negotiations (not terribly surprising, as it's just awfully tough making out a case sounding in takings these days, no matter how big and sharp the sword of damocles hanging over your head when you 'voluntarily' choose to participate in federal programs)
- cert granted in a Crowther relating to whether Title IX creates a private right of action for employees to bring sex discrimination claims (recall, unlike title vii, which clearly provides "direct" employment based remedies, title ix is really funding statute - the 11th circuit, contrary to most, had ruled that employment claims have to be brought via title vii. while i'm not an employment lawyer, i think the practical difference is that you may be able to get to court faster and with less process outside of title vii)
- a few cases remanded for reconsideration in light of Callais
- denial of cert in drug manufacturers' challenge to medicare drug price negotiations (not terribly surprising, as it's just awfully tough making out a case sounding in takings these days, no matter how big and sharp the sword of damocles hanging over your head when you 'voluntarily' choose to participate in federal programs)
- cert granted in a Crowther relating to whether Title IX creates a private right of action for employees to bring sex discrimination claims (recall, unlike title vii, which clearly provides "direct" employment based remedies, title ix is really funding statute - the 11th circuit, contrary to most, had ruled that employment claims have to be brought via title vii. while i'm not an employment lawyer, i think the practical difference is that you may be able to get to court faster and with less process outside of title vii)
In the neighboring county to where I currently live, back in the late 1970's a federal judge forced the county commissioners to carve out a district for minorities for 1 of 5 commission seats. In Florida, the seat formerly held by Corrine Brown in the US House was a district narrowly drawn along the St. Johns River from Orlando to Jacksonville. That was crazy. In a country where Barack Obama was elected to national office, and SC and GA both elected minorities to the US Senate, we need to move on from the 1960's. We can't truly move on until the federal government stops the obsession of classifying everyone by race. BTW, I'm mixed race.
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The Government should be colorblind. There is no other way forward.
As I think I lay out in a post subsequent to this, my instinct too is that it is directionally right policy wise (though admittedly harder to articulate the legal pathway to justify the change) to reorient redistricting law toward intentional discrimination. But it is important to preserve remedies for intentional discrimination. What I am uncomfortable with about Callais is the catch 22 - at least given present voting patterns - that will make it more difficult than is probably appropriate to make out an intent based case. (And that said, I do think there is some truth to the idea that these days, motivations are more political and less racial than they were once upon a time.)
Good morning ladies and gents. Opinions coming later this am.
separately, I’m going to go out on a limb and predict the Florida trial court issues its decision today or tomorrow in the redistricting state law challenge, to take us into the weekend.
separately, I’m going to go out on a limb and predict the Florida trial court issues its decision today or tomorrow in the redistricting state law challenge, to take us into the weekend.
If the Florida redistricting is allowed to proceed after Virginia (reasonably) wasn't, it's going to be virtual proof that Democrats and Republicans are playing by a completely different set of rules (ie the Republicans don't have any).
At least in Florida. I “get” the legal theory they’re pushing, but it should not prevail, both for legal reasons te severability and for practical ones of remedy (ie, even if the 'old' map were somehow illegal post-Callais, you'd ordinarily revert to an older one.)
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First case is a pension case - M&K - relating to calculation of employer withdrawal payments for unfunded liabilities under a multiemployer plan. Unanimous from Jackson.
Next, Havana Docks, one of the Cuba expropriated property cases. 8-1 from Thomas. (That means anything further has to come from him or the chief. Hold on to your hats...)
oooh. Hamm v Smith (capital punishment and IQ scores) dismissed as improvidently granted. That is a surprise. Long concurrence and dissents from Soto/Thomas/Alito/Gorsuch/Chief. This one may be sort of curious reading.
Next, Havana Docks, one of the Cuba expropriated property cases. 8-1 from Thomas. (That means anything further has to come from him or the chief. Hold on to your hats...)
oooh. Hamm v Smith (capital punishment and IQ scores) dismissed as improvidently granted. That is a surprise. Long concurrence and dissents from Soto/Thomas/Alito/Gorsuch/Chief. This one may be sort of curious reading.
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They are different states and each state has a constitution, so yes, they can play by different rules, as long as they conform to the state and federal constitutions.
Except Florida and Ohio are simply ignoring their constitutions.
The issue as I understand it in the Florida case is that the constitution (Art. 3, ss 20-21) prohibits partisan gerrymandering, but simultaneously provides, to a certain "soft" degree, that race be taken into account. There is no dispute that the proposed map is partisan, but the state is arguing that the state constitution's race provision is no longer valid post-callais, because you can't mandate the use of race in redistricting in the absence of intentional discrimination, and that the race and partisan provisions of the amendment are not severable.
(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
Full disclosure/mea culpa - in some initial posts, i'd used some shorthand to describe the racial provisions that suggested a stronger mandate than probably exists; it is much more in the nature of 'permissible wiggle room' than a mandate. IMO, this weakens the state's argument even further, as it's just not clear to me that Callais in fact does create a standard inconsistent with the state constitution.
I suppose, to flaw's post, one might argue that it's not technically being "ignored," it's being acknowledged but "distinguished" or deemed no longer applicable, albeit in my view pretty weakly.
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Article III, Sections 20 and 21. It's incredibly cut and dry.
SECTION 20. Standards for establishing congressional district boundaries.—In establishing congressional district boundaries:
(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection 1(a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
(c) The order in which the standards within subsections 1(a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.
History.—Proposed by Initiative Petition filed with the Secretary of State September 28, 2007; adopted 2010.
1Note.—The subsections of section 20, as it appeared in Amendment No. 6, proposed by Initiative Petition filed with the Secretary of State September 28, 2007, and adopted in 2010, were designated (1)-(3); the editors redesignated them as (a)-(c) to conform to the format of the State Constitution.
SECTION 21. Standards for establishing legislative district boundaries.—In establishing legislative district boundaries:
(a) No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection 1(a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
(c) The order in which the standards within subsections 1(a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.
It's also worth keeping in mind they were trying to do all of this well before the Callais decision came down as well.
I am not saying the Florida Supreme Court won't allow this. But I am saying that if they do it'll be a clear violation of their constitution and further evidence that the rules don't matter for the GOP.
technically true, though i don't think there's any doubt that they were anticipating/banking on Callais saying something like this. i think they probably acted when they thought they might start running out of time waiting.
i too am not putting a huge amount of faith in SCOFFLAW to rule on this correctly, but the hope I have is that even they will recognize they'll be a bit of a laughingstock with the gymnastics they'd have to pull.
I will also say I'm not in love with the comparison of FL to VA other than at the very highest level of "not following your own state rules"; FL is in my view at least a little more complicated by the federal/scotus angle, whereas IMO VA really only involved state questions.
I think people are really going to struggle stomaching the "this was usually legal but you didn't time it right so no" for Virginia and "this is very clearly (at best) a perversion of the state constitution, so go forth with our blessing". I will, at least.
Do you have any knowledge of why the maps have consistently been allowed to stand in Ohio despite their Supreme Court ruling them illegal?
No insight as to Ohio. I don't doubt that the VA/FL contrast will "play' as a message if it works out that way, and that it'll be far too technical to try to explain potential distinctions, other than to say simply that VA has better judges.
No insight as to Ohio. I don't doubt that the VA/FL contrast will "play' as a message if it works out that way, and that it'll be far too technical to try to explain potential distinctions, other than to say simply that VA has better judges.
You'd know the quality of the judges far better than I, to be sure. I think "Florida has a crap Supreme Court" also wouldn't play super great.
We need national reforms, I'm so tired of this game. It's just the most shameless anti-democratic thing we do in this country (at least that comes to mind late in the day).