The Volokh Conspiracy

In the moment, it is very difficult to know what Supreme Court decisions are actually important. Perhaps Trump v. Anderson is a leading example. For nearly a year, the scholarly community completely lined up with the argument that the judiciary should invoke a 150-year old clause that has virtually zero precedent to disqualify the leading candidate from the presidential ballot, even though no one was even charged with insurrection. Now, other than a few grousing law review articles, Section 3 has receded from whence it came. Or take Trump v. United States. When it was decided, we were warned that this decision would usher in despotism. Barely two years later, the decision is largely irrelevant. Indeed, due to an unusual set of circumstances, all of the prosecutions against Trump have petered out. I would add Slaughter to that same list. Without question, it was momentous for the Court to allow Trump to fire an FTC commissioner, all but signaling that Humphrey's Executor is dead. But how much will this case actually affect most people? Does the average American even know what the FTC is?

I think Abbott v. LULAC is different. This case might be the most impactful emergency docket ruling yet. Consider the dynamics. Both parties have now committed to mid-decade redistricting. As Justice Kagan observed, "overtly partisan redistricting (in both red and blue States) became de rigueur." The control of the House of Representatives will be decided on a knife's edge. If California could have gerrymandered Republican seats out of existence, but Texas was unable to gerrymander Democrats seats, then there would have been a clear asymmetry. It is difficult to say with any certainty how much of an effect this asymmetry would have. In recent years, the incumbent President's party tends to lose seats in the House. But I think it safe to assume that if California could redistrict, but Texas could not, the Republicans wold have slim odds of keeping the House.

What follows from that outcome is fairly predictable. We would see impeachments: Secretary of Defense (War) Pete Hegseth, Attorney General Pam Bondi, Judge Emil Bove, and more. They might try to impeach Trump again over whatever the issue of the day happens to be. The details are not important. If the Senate remains in Republican control, they can follow the Mayorkas precedent, and dismiss all of the indictments on the briefs, without holding a trial. But if the Democrats take the Senate, Chief Justice Roberts would have some more presiding to do.

The predictable commentary is that the Supreme Court simply does the GOP's bidding. I think that is exactly backwards. The Supreme Court's majority has now leveled the playing field, and let both parties duke it out politically. There is a reason the second sentence of the Court's per curiam opinion mentions California, even though the Golden State is not a party.

Here, I see an analogy to Trump v. Anderson. Both cases attempted to hijack the Fourteenth Amendment to help one political party. The Fourteenth Amendment did nothing at all to prohibit gerrymandering based on circumstantial evidence where race was discussed by the legislature--indeed, these discussions were necessarily compelled by the Supreme Court's own cases. If Callais goes the way I think it will go, no one in Texas would even have to mention race. In that regard, the the Supreme Court has laid yet another asymmetrical trap--failure to address race might be unlawful, but discussing race may also be unlawful. Republicans always lose, and Democrats always win. The Fourteenth Amendment certainly didn't empower courts to redraw districts to guarantee minority voters the ability to elect Democrats. And the Fourteenth Amendment did not give state courts the power to disqualify a presidential candidate on the basis of insurrection, especially when Congress has taken no steps to authorize such a suit, and no one in the United States was even charged with insurrection

Voters could see what happened on January 6, and decide whether Trump should be President. Likewise, voters can see what their state legislatures are doing with mid-decade redistricting, and vote accordingly. Indeed, the voters of California resoundingly approved of redistricting through the popular referendum. Most California Republicans voted against the rule, but they lost. I suspect the voters of Texas would have cast a similar vote for redistricting. Justice Kagan laments that "many Texas citizens" will be put in different districts. Many, but certainly not a majority. The Fourteenth Amendment cannot be twisted to help a political minority in one state but not in another.

And that is what this case is about: who gets to decide. The Texas legislators made a decision, but Judge Brown disagreed. Must the Supreme Court stand by idly with this paradigm shifting ruling, based on a deferential "clear evidence" standard of review? Had the Supreme Court reached the merits in Trump v. Anderson, would Justice Kagan insist that the U.S. Supreme Court defer to the Colorado trial court's finding of an insurrection, unless there was "clear evidence" to the contrary?

Here, I think Trump v. CASA explains the state of play. The Trump Administration challenged the power of lower courts to issue universal injunctions, but insisted it would defer to the Supreme Court--obeisance to the worst sort of judicial supremacy. But if the Supreme Court has this overarching power, then we should not be surprised that the Justices take a clean look at an opinion from a razzled-dazzled judge in Galveston that could have altered the arc of history.