The Supreme Court struck yet another blow against voting rights last week when it let Alabama use racially gerrymandered maps in the 2022 midterms. By a 5–4 vote, the ultraconservative justices halted a lower court order that had struck down Alabama’s redistricting plan. The state’s new plan radically dilutes the votes of racial minorities, denying them political power in violation of the Voting Rights Act.
A three-judge district court had ordered Alabama to create a new map in a 225-page decision, but the Supreme Court froze this injunction on the shadow docket without offering any explanation. Justice Brett Kavanaugh, however, wrote an alarming concurrence defending the court’s action, claiming that Alabama’s election is too close at hand to justify intervention. (The primary is more than three months away.) Kavanaugh also responded to Justice Elena Kagan’s scorching dissent, which accused the majority of once again altering the law through its shadow docket.
On this week’s Amicus, Mark Joseph Stern joined Dahlia Lithwick to break down the decision—and its disturbing implications—for the Slate Plus bonus segment. In this excerpt, they discuss the ultraconservative majority’s abandonment of doctrine and precedent in favor of slipshod, unreasoned orders that reek of partisan expediency. Their conversion has been edited for length.
Dahlia Lithwick: I’m thinking of maybe 10 years ago, when folks like Dean Erwin Chemerinsky used to critique Justice Antonin Scalia’s opinion writing—which was at the time 95 percent well-reasoned, principled, doctrinal writing. And then he would just throw in his AM radio lines. Even before tweets were invented, Scalia was doing some of that Real Housewives skirmishing.
It seems as though that has snowballed so quickly so that now it’s more like, “We’re not even bothering with the sober doctrine. We’re just tweeting.” I think one thing that’s really striking in this Voting Rights Act case is that the district court panel actually did the work. They actually did 225 pages of applying the facts to the law. And these shadow docket decisions just toss all that away. All those findings of fact are gone. The justices can toss it away and say nothing. Or they can toss it away and take a shot at Elena Kagan.
Mark Joseph Stern: Obviously the real victims of this order are the Black citizens in Alabama who’ve had their political strength radically diluted by this blatantly illegal map. But I do also have some sympathy for these three judges who issued that 225-page decision—two of whom were nominated by Donald Trump and who probably don’t have a lot of love for the Voting Rights Act, but who recognized that they were legally bound to apply it. And they did so quite honestly and rigorously. And all of their important work just gets set aside or lit on fire by five justices with no explanation.
So while it’s really distressing for the real-world victims of these decisions, it’s also distressing for the dwindling number of real judges in the federal judiciary who are still doing the work like this hasn’t become a political farce—who are still doing their best to apply the law, to apply precedent, to consider the facts and to come to a conclusion that is eminently reasonable and defensible.
I mean, the district court might just as well have issued a one-page order with a doodle of Brett Kavanaugh’s face on it, for all that the Supreme Court cared, because they just tossed it aside with no explanation. So yeah, it sucks for Black people. It sucks for democracy. And it also sucks for the few remaining judges who believe that there is something separating law and politics, and that by actually doing law, they will get at least an iota of respect from the Supreme Court majority.
Lithwick: I want to ask you one more question about this. This seems to raise laws of physics rather than jurisprudence, but let’s try anyway. One of the things you noted in your piece when this order came down was the use of the Purcell principle, this idea if there’s an election anywhere in the future, courts can never do anything to fiddle with electoral systems. And I’m struck that, on the shadow docket, it’s always too soon, but it’s also always too late. It’s always an emergency, but we’re not actually doing anything. The court—under the guise of not getting involved in things—is now involved in everything. But we have Brett Kavanaugh insisting, We’re not doing anything! I don’t understand you, freaked-out Elena Kagan. We’re doing nothing here. I think it’s sort of a lame sixth grade magician trick to keep saying, “If I distort the exigencies of time and space and action and inaction, then people won’t see what I’m doing.”
Stern: It’s like the theory of relativity after four bong hits. It’s a very bizarre concept of legal physics. And I think what helps cut through all of the bullshit here is the way that our friend and colleague Steve Vladeck frames it, which is don’t just look at what the justices say. Look at what the actual outcome is, and whether the court is substantively altering the law or making new law through the shadow docket.
The shadow docket is a bunch of different things all tossed in the same bucket. Sometimes the court intervenes and we say that’s bad. Sometimes the court doesn’t intervene and we say that’s bad. And the bad faith actors of the world, like Brett Kavanaugh, will seize on that and say you’re being hypocritical, you don’t have a problem with the shadow docket, you just have a problem with us and our decisions.
I think that’s obviously incorrect. The two worst shadow docket decisions before this Voting Rights Act case were Tandon v. Newsom, where the court radically altered the free exercise clause, and then the S.B. 8 case, where the court allowed Texas’ abortion ban to take effect. In the first case, the court did intervene and radically changed the law. In the second case, the court didn’t intervene and radically change the law. The important thing is that the court ended up fundamentally altering the law and decades of precedent, and did so in a fundamentally unreasoned, slapdash, nonsensical way that does not withstand any kind of scrutiny. And the court won’t even tell us if these interventions count as precedent.
So I agree with you that it’s very frustrating to get gaslighted by Brett Kavanaugh all the time. I think it’s worse if you’re Elena Kagan. And it’s probably even worse if you’re a poor lower court judge laboring under the delusion that the Supreme Court is not politicized.