The Partisan Asymmetry In Callais

In most political disputes, there will usually be an argument that helps the left and an argument that helps the right. A common rhetorical tactic is to insist that one side or other is in fact being neutral, while the other side is being partisan. In the abstract, these arguments should not work because neither side is being neutral. But in various areas of the law, there are liberal institutional asymmetries–legal principles that ensure the liberal position is seen as the neutral baseline.

One of the largest asymmetries was (past tense) the Voting Rights Act. I wrote in October:

Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.

Callais eliminated this asymmetry. Going forward, absent evidence of intentional discrimination, racial minorities will no longer receive an electoral boost through the VRA. The upshot of Callais, as well as Students for Fair Admissions, is that the government can no longer adopt “benign” classifications to “help” racial minorities. I use scare quotes because I doubt that any of these classifications actually helped the people they purproted to help. Moreover, all classifications are zero-sum games, and to help one race is to hurt another race. The post-Callais world may see a realignment of political power in the South that is difficult to predict. Gingles froze the politics of the 1980s in place. Indeed, many aging members of opportunity districts have served that long. Going forward, black people will no longer be moved around like pawns to maximize Democratic districts.

Now, as Justice Thomas wrote in Allen v. Milligan, we will have a system where “the minority simply cannot elect its preferred candidates; it is, after all, a minority.” The neutral rule is not that federal courts draw bizarrely-shaped districts that cobble black voters together for no reason other than they are black. Decades of VRA litigation have conditioned us to thinking that Gingles is neutral. It’s not. Instead, the neutral rule is that the demographics with fewer voters have a harder time electing their preferred candidate. Callais reimposed the neutral rule.

The aftermath of Callais further demonstrates this warped conception of neutrality. The private plaintiffs asked the Supreme Court to issue the judgment right away. Last week, I observed that the issuance of the judgment is irrelevant. There is no injunction blocking the implementation of new maps. Still, the plaintiffs asked for the judgment to be issued forthwith.

The per curiam order granted the motion to issue the judgment forthwith:

To permit the losing party time to file a petition for rehearing, the Clerk of Court ordinarily waits 32 days after the entry of the Court’s judgment to send the opinion and a certified copy of the judgment to the clerk of the lower court.Sup. Ct. Rule 45.3. This period is subject to adjustment; the default applies “unless the Court or a Justice shortens or extends the time.” Ibid. The Callais appellees have asked for the Clerk to issue the judgment forthwith so that “in the event of a judicial remedy,” the District Court may “oversee an orderly process.” App. 3. Appellant Louisiana does not oppose this application. And while the Robinson appellants oppose it, they have not expressed any intent to ask this Court to reconsider its judgment. Thus, the application toissue the judgment forthwith presented to JUSTICE ALITO and by him referred to the Court is granted.

The judgment is issued after 32 days to allow the losing party time to seek reconsideration, but that rule can be waived if there is good cause. In Callais, those seeking expedition provided good cause. Those opposing expedition made a strategic miscue. When the non-African American plaintiffs sought to issue the mandate forthwith, the African American plaintiffs should have concurrently filed a motion for reconsideration. On what grounds, I don’t know, but they could have filed something. That would at least have triggered another ground of (pointless) briefing, and given the Court a rationale to not issue the judgment forthwith. But the African American plaintiffs did not take that course. Instead, they simply opposed the issuance of the judgment. The Supreme Court called their bluff.

Justice Jackson, however, wrote a harsh dissent. She all-but charged the majority with partisanship.

These post-Callais developments have a strong political undercurrent. Louisiana’s hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties.2 And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party’s objection only twice in the last 25 years. See Whole Woman’s Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures. But, today, the Court chooses the opposite.

Jackson concludes:

The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.

Justice Alito responds in a concurrence, joined by Justices Thomas and Gorsuch. Alito writes that Jackson’s charge is “baseless and insulting.” Why? Jackson is so quick to charge the conservatives with partisanship that she never countenances that her own view might be motivated by partisanship.

The second reason offered by the dissent is that we should allow the 32-day period to run out in order to “avoid theappearance of partiality.” Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on unthinking compliance with Rule 45.3’s default rule doesnot create the appearance of partiality (by running out the clock) on behalf of those who may find it politically advantageous to have the election occur under the unconstitutional map.

The Republicans want to issue the judgment right away, and the Democrats do not. The Democrats want to use the unconstitutional maps, and the Republicans want new maps. Why is it that only the Democrats are behaving neutrally while the Republicans are behaving in a partisan fashion? I think both sides are serving their own self interest. Therefore, it cannot be that a decision favoring the left is “neutral” while a decision favoring the right is “partial.”

Again, Jackson does not explain why refusing to issue the judgment is the partisan rule. The rules permit the issuance of the judgment where there is good cause, and when the non-prevailing party have given no indication they will seek reconsideration, there is no good cause to stand by.

Alito writes further that failing to act to avoid the appearance of partisanship is in fact partisan.

The dissent goes on to claim that our decision represents an unprincipled use of power. See post, at 4 (“And just likethat, those principles give way to power”). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3’s 32-day default period should never be shortened even when thereis good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as partisan?

We should sandblast “Equal Justice Under Law” off the Supreme Court’s portico and chisel into marle this passage. The Supreme Court decisions that I am most critical of stem not from a failure of jurisprudence but from a failure of courage. Judges who are unwilling to be criticized for partisanship simply acquiesce to liberal conceptions of “neutrality.” Perhaps Callais will steel the Court to stop falling in this progressive trap. The left is simply gaslighting conservatives as to what neutrality is. Neutrality is applying the law without fear or favor for either side.