SCOTUS Saves Staten Island

My hometown of Staten Island is often called the forgotten borough. Everyone knows about Manhattan, Brooklyn, Queens, and the Bronx. But Staten Island is known, if at all, as a conduit to get from New York to New Jersey. In terms of the famous New Yorker magazine cover, Staten Island lies beyond the Hudson River.  Yet, Staten Island made it all the way to the Supreme Court’s emergency docket, and prevailed.

Yesterday the Court granted a stay in Malliotakis v. Kosinski. The effect of this ruling is that the congressional maps that were previously in effect, and were not blocked by New York’s supermajority democratic legislature, will go into effect. New York will not redraw the districts such that the Republican-leaning Staten Island is combined with Democratic-dominant parts of lower Manhattan. This suit was, from the outset, an audacious attempt by Mark Elias to simply create a new Democratic district under the guise of the state Voting Rights Act.

I have several observations about the case.

First, what took so long? The petition stated: “Unless this Court issues a stay by February 23, 2026, New York’s congressional elections will be thrown into chaos and uncertainty.” But the Court did not rule until March 2. I realize that the word of the day is “impatience,” but there were clearly six members of the majority from the outset, and those six members did not feel compelled to explain their reasoning. Justice Sotomayor wrote a thirteen page dissent. Did she really need nearly four weeks to write this dissent? To what extent does the majority have to wait for the dissent to be circulated? At least in Galveston, Judge Brown wouldn’t wait 24 hours for Judge Smith’s dissent to avoid Purcell problems. But why should SCOTUS wait four weeks, thereby generating potential Purcell problems? Wouldn’t it have been better for everyone involved for the Court to issue the stay by February 23, and state that a dissent is forthcoming? The Court did not wait for Justice Alito’s dissent in A.A.R.P. v. Trump, which was published several days later. In one of my draft pieces on Supreme Court reform, I propose that six Justices can force a judgment to be issued immediately, even if opinions are not yet ready. Call it a Quirin quorum.

Second, the majority does not explain its reasoning, but Justice Alito does. Can we reasonably infer that the majority agrees with Justice Alito? Likely no. Indeed, the fact that the per curiam opinion offered no reasoning suggests that the Court (and by the Court, I mean Justice Barrett) has not yet coalesced around a single reason. There is a real contrast with Mirabelli, where Justice Barrett had (likely) made up her mind. If I had to guess, Barrett sees the risk of undoing an election as untenable, so the Court, were it to ever intervene, would have to do so here. The Elias-preferred maps can always be used for the next election.

Third, what do we make of the fact that the Supreme Court did not wait for the New York Court of Appeals to issue a ruling? Well, let’s talk about A.A.R.P. v. Trump again. As readers will recall, the Supreme Court found that the district court’s failure to rule on emergency motion in the span of a few hours was a constructive denial, and then the Supreme Court felt compelled to intervene before the Fifth Circuit had even issued a ruling. (As it turns out, the Fifth Circuit ruled a few moments after the Supreme Court did, and the Supreme Court almost certainly knew that ruling was coming, but the Chief Justice never sweats the details.) All of this happened in the span of 24 hours. Perhaps some may say a different standard should apply where alleged gang members, who were undoubtedly removable under other authorities, were at risk of being removed. I would reply that the clearly established rights of residents of Staten Island to be represented under constitutional maps is of a greater importance than those of purported alien enemies trying to fight removal.

Moreover, while the Texas courts moved with remarkable dispatch, it could be argued that the elected judges of the New York courts were not exactly moving with all deliberate speed. Why would they? The safer course of action is to do nothing and let SCOTUS bail them out. Only two years ago, Hector LaSalle, Governor Hochul’s nominee to be Chief Judge of the New York Court of Appeals, was blocked for being insufficiently progressive. A New York Court of Appeals judge who ruled for the Republicans would likely see massive blowback. The need for review by life tenured Article III judge is especially apt here. If the Supreme Court could find a constructive denial in Texas, then a constructive denial in New York should have been very easy to find.

Fourth, even if there was not a constructive denial, the Supreme Court can enter relief because it is”necessary or appropriate in aid of [our] jurisdiction.” 28 U. S. C. §1651(a). I am not a fan of reading this provision broadly, but it has been read broadly. The Supreme Court invoked this standard in A.A.R.P. v. Trump. The implication was that if the alleged enemy aliens were removed, the Court would not have jurisdiction to consider their cases in the future. I vigorously disagreed with that ruling. Indeed, I thought this case had a Marbury problem, as there Supreme Court ruled without the benefit of any lower court ruling. At least in New York, the state trial court had issued a ruling. Given what the Supreme Court did in the Alien Enemies Act case, I am not troubled by the jurisdictional rulings in Malliotakis.  Indeed, the case for Supreme Court intervention seems much clearer in Staten Island than in Texas. The rule for Staten Islanders should be at least as, if not more protective, than the rule for alleged members of Tren De Aragua.

Fifth, let’s talk about the merits. Justice Alito contends that the enforcement of the state voting rights act is blatantly unconstitutional under the Equal Protection Clause:

That is unadorned racial discrimination, an inherently “‘odious'” activity that violates the Fourteenth Amendment’s Equal Protection Clause except in the “most extraordinary case.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 208 (2023). Extraordinary circumstances exist only when the challenged state conduct is narrowly tailored to achieve a “compelling” interest, and our precedents have identified only two compelling interests that can justify race-based government action: (1) mitigating prison-specific risks and (2) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” Id., at 206–207. Neither of those interests is present here. Instead, the court based its injunction on an interpretation of state law. But under the Supremacy Clause, a state law cannot authorize the violation of federal rights. It is therefore an understatement to say that applicants are likely to succeed on the merits of their equal protection claim.

It seems likely that Justice Alito is going to write the majority opinion in Callais. No one felt compelled to respond to Alito here. Justice Sotomayor offers no defense of the New York court’s ruling, at all. I suspect this passage will be cited in Callais, which might come tomorrow?