Justice Thomas's Concurrence in Alexander v. SC NAACP

I think Justice Thomas is setting up to find that the Voting Rights Act is unconstitutional, at least with regard to redistricting.

On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Constitution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito's majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don't have much to say about these doctrinal points in the majority, or Justice Kagan's dissent.

Instead, I train my focus where it usually goes: Justice Thomas's concurrence. He wrote "separately to address whether our voting-rights precedents are faithful to the Constitution." Thomas explains that the Court "has no power" to decide these redistricting claims under the Constitution. Thomas's opinion received the usual blowback in the press, but as usual, he shifts the Overton window, and now we are talking about whether the VRA may be unconstitutional.

First, Justice Thomas explains that there are no judicially manageable standards to resolve such racial gerrymandering claims. Here, Thomas echoes Rucho: "Determining the proper shape of a district is a political question not suited to resolution by federal courts." In this regard, Justice Thomas sees no difference between political and racial gerrymanders.

Second, Justice Thomas wrote that "The Constitution contemplates no role for the federal courts in the districting process." He wrote that the Elections "Clause makes Congress the exclusive federal authority over States' efforts to draw congressional districts, to the exclusion of courts." And the Reconstruction Amendments did not change that analysis.

Third, Justice Thomas observes that the Fourteenth and Fifteenth Amendments do not provide a "textual basis for judicial resolution of districting claims." Instead, Thomas explains, "Reconstruction Amendments are perfectly consistent with Congress's exclusive authority to oversee congressional districting." Thomas, citing Chris Green, contends that the Equal Protection Clause only focuses on protecting people and property from violence, not discrimination. Likewise, the Privileges or Immunities Clause, the Citizenship Clause, and the Due Process Clause have no bearing on the issue. By contrast, "The express provision of a nonjudicial remedy for voting-rights violations in [Section 2 of the Fourteenth Amendment] counsels against reading §1 to allow judicial remedies implicitly in those same voting-rights disputes." Yes, everyone is fixated on Section 3, but don't forget about Section 2. (Gerard Magliocca may be the only legal scholar on planet earth with actual expertise on both Section 2 and Section 3.) Moreover, Justice Thomas writes that the Fifteenth Amendment only concerns "access to the ballot," and "not a claim about the way minority voters [are] distributed."

Thomas concludes:

At this juncture, I see no directive in the Reconstruction Amendments for courts to police the lines between political districts. Instead, the Elections Clause assigns the responsibility for supervising the States' drawing of congressional districts solely to Congress.

Thomas makes these points in the context of justiciability, but I think they sweep far more broadly. If the text of the Fourteenth and Fifteenth Amendments do not provide any sort of textual authority over redistricting, then those provisions cannot be the jurisdictional hook for the Voting Rights Act. Stated plainly, if Thomas is right about the Fourteenth and Fifteenth Amendments, then the Voting Rights Act could not be constitutionally applied to redistricting. The federal courts absolutely could not redraw maps. This would be a gargantuan shift in the law. To be sure, only Justice Thomas reached this conclusion. But his solo opinions have a way to plating seeds and growing roots.

Fourth, Justice Thomas raises the issue of whether the federal courts even have the equitable power to draw remedial maps.

The Court's insistence on adjudicating racial gerryman-dering and vote dilution claims has also tempted it to ignore constitutional limits on its remedial powers. Ultimately, the only remedy for the constitutional injuries caused by an illegally drawn map is a new map. But, federal courts lack "the power to create remedies previously unknown to equity jurisprudence." Grupo Mexicano de Desarrollo, S. A. v. Al-liance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And, there is no "indication that the Framers had ever heard of courts" playing any role in resolving electoral districting problems. Rucho, 588 U. S., at 699. The power to redraw a States' electoral districts therefore exceeds "the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act."

Thomas concludes:

No court has explained where the power to draw a replacement map comes from, but all now assume it may be exercised as a matter of course.

Again, Alexander was brought under the Constitution, and not under the Voting Rights Act. Seth Barrett Tillman and I have written quite a bit about whether parties can seek affirmative relief under the Constitution in the absence of a federal cause of action. Barely a month ago, Justice Thomas wrote for the unanimous Court in DeVillier v. Texas, "constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose." Tillman and I thought this passage was significant. It may have been on Thomas's mind in Alexander.

I will likely have much more to say about the equitable issue in due course. Relatedly, the Eighth Circuit held that the Voting Rights Act does not create an implied cause of action. This issue has now been circulated to the en banc Fifth Circuit.

Finally, Justice Thomas opined on what must be a issue that is quite personal to him: the majority of black voters are Democrats, so any effort to dilute the political power of Democrats will invariably dilute the political power of black voters.

As the Court observes, roughly 90% of black voters in South Carolina supported the Democratic candidate in the last Presidential election. Ante, at 4, and n. 2. When nearly all black voters support Democrats, an effort to strategically sort Democratic voters can be indistinguishable from an effort to strategically sort black voters. In this case, all Democratic-leaning maps presented during the districting process featured a black share of the voting-age population of 21% or higher, and all Republican-leaning maps featured a black voter share of 17% or lower. Ante, at 15. The dispute in this case therefore focuses on whether that correlation reflected a racial purpose, or merely reflected the result of a political purpose.

Justice Thomas also flips the argument around, as the Plaintiffs assert that blacks who are not democrats cannot represent black voters:

The plaintiffs' argument therefore assumes that the "candidate of choice" for black voters is simply a black candidate. But, the stereotyping is worse than that. In 2016, South Carolina reelected Republican Tim Scott to the United States Senate; Scott is the first black senator from the South since Reconstruction. The plaintiffs and their expert nonetheless decided that this race was not "considered probative for Black electoral opportunity." Supp. App. to Juris. Statement 174a. Plaintiffs' argument therefore combines two stereotypes by assuming that black South Carolinians can be properly represented only by a black Democrat.

Preach CT.