Today the Supreme Court decided the Texas redistricting case by a 6-3 vote. I'll get to my analysis later, but I have to cover some other ground first.
I recently read R. Shep Melnick's review of Michelle Adams's new book on Milliken v. Bradley. I was familiar with the Supreme Court's landmark decision that put an end to forced bussing. But I did not know much about the lower court litigation, which Adams covers in some detail.
Judge Stephen John Roth presided over the case. It seems that Judge Roth was initially skeptical of the claim that he could order children throughout Detroit to be bussed to faraway school. Bs Melnick relates, Judge Roth went through a "conversion" after a 41-day trial:
Support for urban/suburban busing came almost entirely from Judge Steven Roth, egged on by the white Detroiters who had been allowed to intervene in the case. As Adams and many others point out, Roth underwent a conversion in the 41-day trial. Originally skeptical of the NAACP's constitutional arguments, he became convinced that government actors had engaged in housing segregation that led to segregated schools.
Adams effectively reviews the housing evidence that had a profound impact on the judge. She says far less about the evidence that convinced him that using busing to eliminate predominantly Black schools would improve the educational opportunities of minority students. The evidence on housing was central to Roth's relatively uncontroversial liability finding. The evidence on education was crucial to the extraordinary remedy he fashioned after finding a constitutional violation.
Judge Roth later told a reporter, "We all got an education during the course of the trial. It opened my eyes."
Judge Roth became convinced that to enforce Brown v. Board of Education, he had to enter a remedial scheme that was unfathomable. This was not a conversion. It was an apotheosis: Judge Roth saw himself as a god who could remedy society's ills. The trial deified him.
This line from Judge Smith's dissent was directly on point:
There's the old joke: What's the difference between God and a federal district judge? Answer: God doesn't think he's a federal judge. Or a different version of that joke: An angel rushes to the head of the Heavenly Host and says, "We have a problem. God has delusions of grandeur." The head angel calmly replies, "What makes you say that?" The first angel whispers, "He's wearing his robe and keeps imagining he's a federal judge."
Well-managed trials, that tug on all of the right strings, can have a transformative effect on even the most sober-minded people. There is a reason effective trial lawyers can wrap juries around their fingers, and secure astronomical judgments. Indeed, there is a reason why sophisticated defense attorneys do everything in their power to keep cases away from juries. I don't think judges, when presiding over bench trials, are immune from this dynamic. Indeed, when district court judges afflicted by the god complex have unlimited remedial powers, they, like Judge Roth, can do just about anything.
One of my favorite Broadway musicals is Chicago. In the song Razzle Dazzle, defense attorney Billy Flynn, played by Richard Gere, explains how you can pull the wool over a jury's eyes and make them believe anything.
Give 'em the old razzle dazzle, razzle dazzle 'em
Give 'em an act with lots of flash in it
And the reaction will be passionate
Give 'em the old hocus-pocus, bead and feather 'em
How can they see with sequins in their eyes?
What if your hinges all are rusting?
What if, in fact, you're just disgusting?
Razzle dazzle them and they'll never catch wise
Civil rights attorneys have perfected the art of presenting their cases in the perfect sympathetic light. And the government can, at most, defend their work by pointing to pure partisanship or different standards or review.
Back to Judge Brown's decision. The Supreme Court's per curiam decision was fairly predictable. It should have been very clear to Judge Brown that his opinion "failed to honor the presumption of legislative good faith." And it should have been clearer that his opinion would not stand since the plaintiffs "did not produce a viable alternative map that met the State's avowedly partisan goals." Judge Brown's distinction--that a map was not needed at an interim stage--was never going to hold up. And it should have been crystal clear that Purcell would not allow this sort of relief in the middle of the primary process. But the mountains of evidence submitted by the plaintiffs let him look past those significant legal barriers.
Justice Kagan's dissent extols the length of the lower court proceedings:
