SCOTUS Greenlights Racial Gerrymandering in Texas

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Chief Justice, I please the court.

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She spoke not elegantly, but with unmistakable authority. She said,

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All I ask of our brethren is that they take their feet off our legs.

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts.
I'm Leah Littman. I'm Melissa Murray.
And I'm Kate Shaw.

Tis the damn season, and SCODAS decided to drop a real anti-democratic lump of coal in everyone's docking a couple of weeks early this year.

So we have responded in kind with this emergency/slash bonus episode that focuses on how the court's Republican appointees have given Donald Trump's GOP yet another lawless electoral boost just in time for this holiday season.

Yes, we are talking about the the shadow docket order from last Thursday night allowing Texas to use its new gerrymandered Republican-skewed map in next year's midterm election.

Although a three-judge court, technically two judges and an anti-Soros troll, found that the Texas map was an unlawful racial gerrymander, the Republican justices said what's a little racial gerrymandering among friends and decided that Texas could use their Trump-approved maps.

As Leah said on Blue Sky, this court is a joke. So let's get a quick refresher on what this case is all about.

Listeners, you'll remember the president, realizing that America just might not be that into him or fascist authoritarianism or a flagging economy or soaring health insurance premiums, decided that he was going to engage in some light arm twisting and asking red state legislatures to do him a solid and find him a few extra seats in the House of Representatives.

All of this, of course, to prevent the American people from going to the polls in the 2026 midterms and voting out this Republican-controlled Congress and maybe voting in some measure of congressional accountability.

So, initially, Trump's request for just a little mid-cycle redistricting among friends didn't go anywhere.

Typically, redistricting is done only after the decennial census, and states had already wrapped up their post-2020 census redistricting.

This was the first redistricting cycle to occur in the wake of the Supreme Court's disastrous decisions in both Rucho v. Common Cause and Shelby County v.

Holder, both of which happened between the 2010 and the 2020 census.

Rucho held that federal courts could do nothing to remedy partisan gerrymandering, and Shelby County nuked the Voting Rights Act's pre-clearance regime, which had required states with especially egregious histories of voter discrimination to obtain the federal government's permission before changing their voting laws or policies.

And this seems like a great place to remind everyone that both of those decisions were authored by noted institutionalist John G. Roberts.
Carry on.

Newly freed from the inconvenience of having to know, you know, act like multiracial democracies and persuade their constituents to support them, states went quite hogwild during the 2020 redistricting.

They engaged in extreme partisan gerrymanders that produced maps that both entrenched the map drawers' political party and often substantially diluted the voting power of racial minorities, locking them out of power.

And apparently, that wasn't anti-democratic enough for Donald J. Trump, who asked for new maps that gave the Republicans even more seats.

So, states didn't initially jump at this request to redistrict mid-cycle, but all of that changed, specifically in Texas, after the Trump DOJ got involved.

So, Harmeet Dillon, who is Donald Trump's assistant attorney general for civil wrongs, sent a letter to Texas telling the state that it had to redistrict because the 2020 redistricting maps that Texas drew were illegal racial gerrymanders.

And the letter specifically pointed to Texas's minority coalition districts.

These are districts where several different groups of racial minorities form a political majority and therefore have an opportunity to elect the candidates of their choice.

And the DOJ said, wait, racial minorities having electoral power? That sounds fattenly illegal.

And to make the point that, in fact, the minority coalitions are unlawful racial gerrymanders, the DOJ cited, I should say distorted, a Fifth Circuit decision that, although pretty bad, didn't actually say that minority coalition districts are in fact unlawful.

All the Fifth Circuit said was that the Voting Rights Act does not require states to draw minority coalition districts. They never say that the districts are actually illegal.

The DOJ made that part up.

So after DOJ told Texas that it could engage in even more egregious partisan gerrymandering by sticking it to minority voters, Texas said, hook them, and got right on it.

So the legislature produced a new set of maps that erased districts where minority voters had political power, giving the Republican Party more seats.

And a three-judge court said, hey guys, did you read the Constitution, specifically the part of it that says the right of citizens to vote shall not be denied or abridged on account of race or color?

We call that the 15th Amendment. No? What's that you say? The Reconstruction parts don't count? No.

I'm laughing both because of that and because the way you just said Constitution sounded so much like Melissa channeling, is it South Park, the institution?

It sounds like Constitution and Institution. have just totally collapsed.

Noted constitutional part to the 14th and 15th Amendments, or maybe not so much. Anyway, so back to this three-judge court.

So the court issued a two-to-one decision that was written by a trial judge nominated by real liberal squish, first term Donald J. Trump.

Thank you for your attention to this matter.

So this two to one decision, again, by Trump appointee, concluded that Texas's new maps were illegal racial gerrymanders because the legislature relied on racial reasons for drawing the new maps, and that was specifically to eliminate minority coalition districts.

And as we alluded to at the beginning of this conversation, that really triggered the third judge on the three-judge panel, Judge Jerry Smith, who weighed in with what might be accurately characterized as borderline QAnon screed about how the real winners of the court's two-to-one decision were George Soros and Gavin Newsom.

The dissent mentioned Soros and his family members no fewer than 17 times, referred to one expert witness as having a Soros piggybank, and in multiple other ways, not so subtly implied that Reconstruction and/or civil rights were somehow George Soros' fault.

And Texas immediately ran to the Supreme Court to request a stay of the two-to-one decision of the three-judge panel.

Basically, they said, please allow us to use these extra-partisan gerrymandered and racially gerrymandered maps in the upcoming midterm election, which, to be clear to everyone listening, is about 11 months months from now.

And while someone very smart said once that the way to stop discrimination on the basis of race is usually to stop discriminating on the basis of race, it turns out that you are actually allowed to discriminate on the basis of race if it helps the Republicans in the midterm elections and allows the GOP to maintain their hold in Congress and various state legislatures.

I had forgotten about that caveat.

Or is the caveat that the way to stop discrimination based on race in redistricting is to stop district courts from stopping discrimination based on race in redistricting?

Whatever the exact formulation, it is most definitely Brett Kavanaugh's contribution to critical race theory. He shoots.
He scores.

Anyway, weirdly, the six Republican justices on the Supreme Court stayed the lower court order invalidating Texas's new maps, because of course they did.

And the effect is to allow Texas to use its racially gerrymandered maps in the upcoming midterms.

For me, the most egregious aspect of all of this is that it is such a colossal, gigantic, titanic fuck you to voters.

It's so obvious what the court is doing and everyone can see them greasing the wheels for this president and his party. And the court genuinely doesn't care that we all see it.

We all get what's going on. There is not even the patina of neutrality here, like nothing.
You thought the Eastern District of Virginia headed by one Lindsey Halligan was clown town?

Guess again, folks, there's a new entrant. Yeah.
And that's 11st Street.

And it's somehow very appropriate that this order came on the just the tip docket and with just a little bit of foreplay reasoning to boot.

Because if any order says the country isn't getting fucked while fucking the country, it is an order that fucks with election maps. You like that one? Yes, I said that all with a straight face.

The court gave Texas permission to put these maps into effect, these maps that were purposely drawn to erase majority, minority districts and disadvantage minority voters for partisan reasons.

And the court did all of this in the very same week that the president of the United States reached a new low in racism.

And I have to say, I honestly did not think that he could surprise me on the racism front, but here we are with a new high, as it were, on the racism to words ratio.

I am, of course, listeners referring to the president's rant against Somali Americans and Somalians and Representative Elon Omar, but I'm going to let you listen for yourself. Roll the tape.

I don't want them in our country. Their country is no good for a reason.
Their country stinks and we don't want them in our country. I could say that about other countries too.

I could say it about other countries too. We don't want them to help.
We got to... We have to rebuild our country.
We're going to go the wrong way if we keep taking in garbage into our country.

Elon Omar is garbage. She's garbage.
Her friends are garbage. These aren't people that work.
These aren't people that say, let's go, come on, let's make this place great.

These are people that do nothing but complain.

They complain. And from where they came from, they got nothing.

You know, they came from paradise and they said, this isn't paradise. But when they come from hell,

And they complain and do nothing but bitch,

We don't want them in our country. Let them go back to where they came from and fix it.

Can I just briefly quote Nico Bowie, who we've had on the show before, as a law professor at Harvard, who I thought had like a great observation on Blue Sky.

He said, quote, this man may be the most racist president this country has ever had, and 12 presidents owned slaves. But back to this order.

It is difficult to convey just how hackish and baseless the Supreme Court's order is. We could spend five hours and not exhaust all of the reasons.
So we will give you a sampling.

Just the tip, as it were. There is the court's continued disdain for the lower federal courts and their fact-finding.

It doesn't matter whether you are a Trump appointee, as the author of the three-judge district court opinion was, you still must spend the facts to fit the Supreme Court's preferred reality.

And the district court here issued a 160-page ruling analyzing facts that had been developed in evidentiary hearings. And the Supreme Court basically just said, nu-uh.
Yeah.

Then there is the court's rationale, such as it is, and they gave two or three reasons, depending on how you count, all of them cursory, none of them made any sense, but let's tick through them.

First, the court said that the three-judge panel, quote, failed to honor the presumption of legislative good faith.

Basically, the district court was too quick to recognize DOJ and Texas's admissions that they were engaged in racial gerrymandering as admissions that they were in fact engaged in racial gerrymandering.

It is not clear, to my mind at least, what the presumption of good faith has to do with a case where they admit it, like they say they're using race.

The most you can say here is that Texas was also trying to defeat democracy by engaging in partisan gerrymandering, even as they also used race or just used race to accomplish that objective.

It's really rich to talk about the presumption of good faith in a case about mid-cycle redistricting, but be that as it may.

The second thing the order went into was that the three judge panel, quote, failed to draw dispositive or near dispositive adverse inference against the plaintiffs, even though, quote, they did not produce a viable alternative map that met the state's avowedly partisan goals.

So in plain English, what this means is that the plaintiffs here didn't come up with a set of maps that would have given the Republicans the same extra partisan advantage, but without engaging in the use of race.

And as we've said before, this requirement that plaintiffs identify an alternative set of maps that would produce the same partisan outcome in a world of racially polarized voting effectively legalizes racial gerrymandering so long as minority voters choose not to vote Republican, which again, as we've noted, often is the case.

And this kind of reasoning honestly reads like a Clarence Thomas fever dream, where not only is affirmative action bad for minorities, so are minority coalition districts and voting for Democrats.

So you definitely shouldn't do it. people of color.

Finally, the court made some noise about how courts shouldn't alter election rules, quote, on the eve of an election, end quote, basically invoking the ideas behind the Purcell principle, although they couldn't quite bring themselves to actually cite Purcell and invoke it by name, maybe because the idea that it's even relevant here is just ludicrous.

So that was the reasoning, such as it was. Then there are the implications.

And the reality is the court has basically given state legislatures a how-to manual on how to get away with using racist redistricting schemes.

Just pass them close to an election, such that the Supreme Court will say it's too close to the election for federal courts to intervene.

As Justice Kagan wrote in her dissent for the three Democratic appointees, quote, it was the Texas legislature that decided to change its maps six months before a March primary.

The plaintiffs could not have moved any faster. This, quote, gives every state the opportunity to hold an unlawful election.
That cannot be the law, except, of course, that today it is, end quote.

Her dissent is full of rips.

And the fact that the court is letting Texas do this and to use race to do this makes it all the more essential for blue states and Democratic-led states to engage in counter gerrymandering in order to counter this at the national level.

As we were recording, Indiana approved a nine to nothing gerrymandered map, ensuring that all of the seats would be locked in as Republican seats, ousting two Democratic members of the House of Representatives.

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Let's say a little bit more about the lower federal courts. So listeners, as you know, the Supreme Court ordinarily is not a trial court.
It's a court of appellate jurisdiction for the most part.

And appellate courts, like the Supreme Court, are supposed to defer to a trial court's fact-finding. That is, the idea is that the trial court is on the ground.
It is considering witness testimony.

It is reviewing exhibits and everything else. And guess what?

What is the full point of having trials, reviewing evidence, having standards of review, if you, as an appellate court, Supreme Court, is just going to second guess what trial courts do?

This comes up all of the time when the court takes up voting rights cases.

The Republican justices often do not like what the district courts see on the ground, so they either ignore it or they come up with some new magical thinking that accords with their preferred understanding of the world.

And again, none of this is a coincidence when you consider that the only members of the court who have actually served on a district court are justices Sotomayor and Jackson.

And they are usually the ones trying to get the court to understand what district courts do and to defer and respect the work of district courts.

But this court court is on one, and its lack of deference for district court judges is just more evidence that none of this is on the up and up. Yeah, basically, standards of review are for suckers.

Gotta credit Melissa Stewart on Blue Sky for this line, although this next one's mine. Facts are for fucking losers.

So Justice Kagan's dissent, you know, which I've already referred to, called out the court's, quote, eagerness to play act a district court, end quote, and redecide the facts.

Very much disasterpiece theater, right? They wouldn't let Project 2025 have all the fun.

But at least for me, like part of what was so appalling here is that they are play acting a district court and redeciding the facts without even deigning to engage with the actual facts.

Like they say nothing about the actual evidence in the case. They just announce the district court was wrong, right? It's disasterpiece theater, but also as legal improv.

It's Second City, but not remotely fucking funny. That's an insult to Second City, which is actually genius.
It is. She said that, but not distinct in one critically important way from Second City.

Still, just even saying Second City in close proximity. Sorry.
Yeah. They used to let audience members get up at the end of Second City shows and do a little improv.

And sometimes things got pretty bad. So

it could have been like

this is basically audience.

It is.

Brett Kavanaugh tried to do it. On stage.

yeah yeah it's not at all um and and i mean but to your substantive point like they couldn't engage with the facts because the lower courts actually had in front of them testimony time like expert reports like the supreme court just like glanced through it and said like nah um that is basically what we are looking at and the disrespect that is kind of on display for lower courts this particular three-judge court but lower courts in general like would not be less galling if the district judge who authored this opinion had been an Obama or Biden appointee.

But I do think that at least the justices might be able to tell themselves some kind of story about partisan or ideological antipathy for the overreach by these Republican elected officials.

But this district court judge, Jeffrey Brown, is an ideological fellow traveler with this court majority. He clerked for Greg Abbott on the Texas Supreme Court.

He himself was a Texas state court judge for years. Rick Perry, remember him, put him on the Texas Supreme Court.
He invalidated the Biden administration's large employer COVID vaccine mandate.

Like the only thing that was available. He probably voted for Zoran Mondani.
I know. Yeah, exactly.

But he didn't go to Yale and he didn't play pickup basketball with the right faculty members and suck up to the right people who could get him the federal clerkships who would put him on the path to power.

So I guess that does distinguish him from other people on the Supreme Court. And then maybe also he does still believe in law, or at least he seems to.

And that is a critical distinction between him and the Supreme Court majority at this point.

Other problem is he believes in facts, like those trial courts, just way too susceptible to the whole evidence thing.

Or perhaps the problem is just the facts themselves, which obviously are biased in favor of liberals and George Soros.

Whatever the issue is, we just want you district courts out there to know that we see you. Please keep issuing these opinions where you wrestle with the facts and actually put them down on paper.

We understand that it is probably beyond demoralizing to have your work overruled with just a nanny, nanny, boo-boo, whatever. We don't care.

But those opinions that you are banging out, those careful, lengthy, painstakingly detailed opinions, all of that is so necessary to make clear just how off the rails and lawless this court is being.

All right, we should say a little bit more about how lawless the alternative map requirement is. Let's make that a second theme.

Above and beyond how the requirement effectively legalizes racial gerrymandering. So let's get into that.

When you said nanny, nanny boo-boo, Melissa, I was thinking like SCOTUS D-G-A-F and imagining the backs of their robes like that Melania code.

I don't care. Do you? Right, exactly.
I really don't care. Do you, I think she said.
Right, yes, yeah, that one.

I hate Christmas.

The

alternative map requirement, back to what they deigned to say. That requirement just doesn't apply to cases like this, which have direct evidence of racial discrimination.

The district court explained this by relying on the Supreme Court's own opinions.

So I am going to quote directly from an opinion written by noted liberal squish, Soros Aficionado, and friend of the pod, Sam Alito.

Quote, a plaintiff must prove that the state subordinated race-neutral districting criteria to racial considerations. This showing can be made through direct and circumstantial evidence.

Direct evidence often comes in the form of irrelevant state actors express acknowledgement that race played a role.

Proving racial predominance with circumstantial evidence alone is much more difficult.

A circumstantial evidence-only case is especially difficult when the state raises a partisan gerrymandering defense.

To prevail, a plaintiff must disentangle race from politics by proving that the former drove a district's lines.

An alternative map can go a long way toward helping plaintiffs disentangle race and politics, end quote. In other words, the alternative map, that's for a circumstantial evidence case.

You only need it when you don't have direct evidence. Like, it just, it was enraging.
Foiled again by those pesky kids on the district court. Anyway,

in a previous opinion. No, my point is that like foiled again by those pesky kids on the district court who used Harmeet Dylan's words against her.
Anyway.

Justice Kagan also takes up this point in her dissent.

So she writes, quote, perhaps the majority has a theory about why, despite all the direct evidence, a near dispositive inference was still appropriate. If so, that is made made up for the occasion.

The word near dispositive does not appear in Alexander versus South Carolina State Conference of the NAACP. That was a 2024 decision.
It was the decision from which Leah was just quoting.

It was written by one Samuel Alito. And as Justice Kakin made clear, like everybody agrees that Alexander is the critical decision addressing alternative maps.

And she continues on this read, quote, nor does that term, that is near dispositive, appear in any of this court's decisions respecting adverse inferences.

Actually, the word appears only three times in the whole U.S. reports.

C E G, Rogers versus Tennessee, Scalia dissenting, referring to, quote, the near dispositive strength Blackstone accorded story decisis. Mike drop Alena Kagan out.
So good, that line.

Yeah, it really was. Yeah.

Just a quick aside, there is something I think inadvertently profound in the suggestion that Alito makes that the reason the plaintiffs didn't produce an alternative map that satisfied partisan goals, but that didn't unconstitutionally discriminate on the basis of race is because he's like, it can't be done.

Now, Kagan does say in her dissent, well, maybe there just wasn't time. But also, like, Alito might be right.
Like, who knows? Maybe it can't be done.

But maybe that's because race and partisan affiliation are often so tightly correlated, you can't really separate them at this moment in our collective lives.

So maybe that means, court, when you celebrate partisan gerrymandering, you are actually celebrating the very kind of racial gerrymandering that you insist you can separate out for purposes of condemning its consideration.

Like none of it, like make it make sense, any of it. Trevor Burrus, Jr.: That's a feature, not a bug.

That's the whole

point behind Russia. Like we'll get it.
We can't do anything about partisan gerrymandering. And oh, by the way, partisan gerrymandering is often racial gerrymandering the end.
Yeah.

But then if you do take race into account for purposes of

diminishing the power of racial minorities, that somehow we've decided we can carve that out from politics in order to condemn it. Sure, guys.
And this, yeah.

So this opinion is also galling for, it really takes takes the fetishization of partisan gerrymandering to the next level.

Like Justice Kagan's dissent makes an aside about the, quote, innocent days when partisan gerrymander seemed undemocratic or unsavory.

She also says, quote, Texas, of course, does not contend that the pursuit of partisan advancement is itself a compelling interest. It is not.
But I don't know.

She like has that parenthetical, it is not, in like trying to remind these guys that that's the case.

But they're just like, is this real worry, to my mind, at least, at this slippage of partisan gerrymandering that Leah was just quoting from, to not just something courts couldn't couldn't address, to something permissible, to something affirmatively great, that like maybe

a constitutional right of entitlement to hold power even when the electorate doesn't want them to. Yeah.
Yeah. That's, I think we're on the path to, if not already there.

That's the one time when strict scrutiny would not be fatal, in fact, when the compelling interest is keeping Republicans in power. All right.

We should also emphasize, listeners, that all of this is happening in the shadow of the court's pending consideration of Louisiana versus Cal A.

That is the VRA case that the court held over from last term, the one where it seems highly likely that the court will declare Louisiana's map, which was drawn to comply with the Voting Rights Act, an illegal racial gerrymander after having just said that Texas's map, which was drawn to erase majority, minority districts for partisan advantage, is not an illegal racial gerrymander.

So

let the double speak wash over you. Yeah, no, seriously, like play that one back because that is just so galling.
And this new season of hacks sucks. I hate that they swapped Gene Smart for Sam Alito.

Although I think Sam Alito would look amazing with a buffant and a caftan.

What is a judicial robe if not a drab caftan, really? He's ready. He's ready for his close.
What's up, Mr. DeMille?

Right.

So on this decision, I wanted to quote Adam Serwer, you know, whose work we often invoke on the podcast.

Adam wrote on Blue Sky, quote, the Constitution is colorblind unless you want to discriminate against non-whites. Then it's fine.
Not just fine.

It's offensive for you to object to racist maps designed to disenfranchise non-whites. How dare you? End quote.

And that's basically what the majority says when they fault the lower court for not indulging in this presumption of good faith.

So Justice Alito did issue a statement that accompanied this order saying that he, quote, would not delay the court's order by writing a detailed response to each of the dissent's arguments.

This had such, I think, big Jerry Smith energy. Like, if I had more time, I would have really dug in, but all I had time for was to like castigate George Soros and Gavin Yusuf.
In any event,

Justice Alito, we are confident that you had some really devastating things to say in response to Justice Kagan's unanswerable and blistering dissent.

But we know that you are very, very busy and you don't have time to put pen to paper. So we understand, sir.
All right. Couple final thoughts.

I mean, I definitely had the extremely bleak and nihilistic thought that like this was so craven and lawless. Like, I don't know.
Is there a way they try to double down and invalidate the California

leaving this one? You stop.

You stop right now. Yeah, seriously.
Like, we're talking about the words. When you called your rich, like, manifesting powers before, just end it right there.

Stop it.

Yeah.

I mean, I will say, like, something else

is the other shoe to drop. Like, when they kill the Voting Rights Act, you know that they are going to be clearing the way for a bunch of Republican-led states to then add new redistricting.

And then they will again say courts can't do anything about that because it's too close to the election. Once again, laying a blueprint for just an anti-democratic takeover.

And just back to the Louisiana versus Cal A Texas point that Melissa made.

I just want to say a few weeks ago, when the Texas district court decision came down, I was speaking with a friend who was a civil rights litigator and voting rights hero.

And that person said, if the court upheld Texas's map while invalidating Louisiana's, they would literally have to resign.

And I'm not going to call like that one in and remind this person of what they said, but I say it just to underscore like how deeply rotten this decision is. Who had to resign?

had to resign or you're from no like this individual

from the legal profession. They're like, just what what would I even be doing? I thought you were saying like they would have to resign because it was so obviously correct.

I mean they do, but that's like several times over.

No. Okay.
So that is all we have time for on this emergency episode.

As Leah's exchange with her friend, I think makes clear, like there's just no sugarcoating how awful this ruling is, how disheartening it is.

If you believe that at least when it comes to litigation, we should be operating and reasoning with something that is recognizable as law. This order does not remotely reflect that.

But litigators and judges and law clerks did really great work on this case. There will be a time when law again matters.
So nobody has the luxury to just like check out of the fight.

We are all going to fight another day because there is no alternative. And with that, we will be back in your earholes bright and early on Monday morning with some new grim news for you.

Enjoy the weekend, everybody.

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippmann, me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell.

Michael Goldsmith is our associate producer. Jordan Thomas is our intern.
We get audio support from Kyle Seglin and Charlotte Landis, and music is by Eddie Cooper.

We get production support from Katie Long and Adrienne Hill, and Matt DeGroote is our head of production. We are thankful for our digital team, Ben Heathcote, Joe Matofsky, and Johanna Case.

Our production staff is proudly unionized with the Writers Guild of America East.

You can subscribe to Strict Scrutiny on YouTube to catch full episodes and you can find us at youtube.com forward slash at strict scrutiny podcast.

If If you haven't already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode.

And if you really want to help other people find the show, please rate and review us. It really helps.

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