09 February 22
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When Justice Elena Kagan suggested the Supreme Court conservatives are abusing the mechanism, the former Boof King of Georgetown Prep was not pleased.
On Monday, by 5-4, and through the medium of its now-infamous “shadow docket,” the Supreme Court left in place an egregiously gerrymandered electoral map produced by the Alabama state legislature. This map effectively disenfranchises Black citizens in that benighted state, and it delivers yet another in a series of death blows to the Voting Rights Act, this one in the service of racial gerrymandering. The majority leaned into previous rulings—notably Purcell v. Gonzalez—in which the Court declined to involve itself in election disputes at the 11th hour, which, according to the majority, apparently begins nine months before the election in question. It must be like one of those Biblical days that lasted millions of years. Justice Elena Kagan laid waste to that position in her dissent.
The general election is around nine months away; the primary date is in late May, about four months from now. See App. 261. Even the first day of absentee primary voting (which Alabama has leeway to modify) is March 30, more than two months after the court issued its order…The plaintiffs “commenced their lawsuits within hours or days of the enactment” of Alabama’s plan in November 2021. App. 203. And the District Court immediately expedited its proceedings; indeed, consistent with everything else the court did right, it moved with astonishing speed. The only delay (of a few weeks) came “at the request” of the State. Ibid. Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.
Kagan was just getting warmed up, however. She went on to flog the majority’s sneaky (and cowardly) use of the shadow docket to work its mischief on established law and policy.
Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.
Well, this was something up with which the former Boof King of Georgetown Prep would not put. Summoning up all his remaining 11th-grade petulance, which is a considerable amount, Justice Kavanaugh replied:
The principal dissent’s catchy but worn-out rhetoric about the “shadow docket” is similarly off target. The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court’s stay order is not a decision on the merits.
Beyond the ironic whining —Kavanaugh was, after all, arguing that Kagan’s rhetoric about the shadow docket was “worn-out” in a concurrence to a shadow docket decision—Kavanaugh based his catchy but worn-out opinion on the absurd concept of how nine months is just around the corner. I’m telling you, we’re going to see people throw hands here at some point.
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