The Volokh Conspiracy
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The Partisanship of Justice Kagan's Abbott v. LULAC Dissent
In a SCOTUS first, Justice Kagan refers to "red and blue states" and implied that redistricting was a mark of "loyalty" to Trump.
Much has been written about Judge Smith's dissent in the Texas redistricting case. All the usual suspects were shocked, shocked (!) that Judge Smith wrote about George Soros. But critics missed the mark. Judge Smith's point was that Texas, like California, was engaging in overtly partisan enterprises. And the groups that opposed Texas's gerrymander, much like the groups that opposed California's gerrymander, are motivated by politics. Race is only implicated because African Americans and Hispanics tend to vote for Democrats more than Republicans. Judge Smith wasn't attacking liberals or conservatives. He was simply describing the state of political play, and why Texas did what it did.
Contrast Judge Smith's dissent with Justice Kagan's dissent in Abbott v. LULAC. Kagan's opinion is dripping with a different type of partisanship--scorn for those who are responsible for this mid-decade redistricting.
Part I begins:
Recall the state of the world last spring, before mid-decade, overtly partisan redistricting (in both red and blue States) became de rigueur.
I checked. This is the first time that any Supreme Court opinion has used the labels "red state" or "blue state." Justice Kagan did it without any hesitation. I guess that using colors was better than describing states as "Republican" or "Democrat" states. Now we know how Justice Kagan actually sees the people.
Look how far we've come from Barack Obama's victory speech at Grand Park. In November 2008, Obama proclaimed, "we have never been a collection of red states and blue states; we are, and always will be, the United States of America." Not even President Obama's most enduring legacy believes in that idealism anymore.
One might think that Kagan's introduction would segue to a balanced discussion of what President Trump did on the one hand, and what Gavin Newsom did on the other. But no such balance here. The word "California" appears nowhere in the dissent. One reading it might think that Texas is the only state that took actions. Justice Kagan may as well be isolated on Galveston Island. (As someone who grew up on an island, I do no intend any offense to those who reside in places surrounded by bodies of water.)
Part I of the dissent continues:
In those months, President Trump and his political team urged Texas officials to redraw their House map, with the goal of creating more Republican seats and protecting that party's vulnerable majority.
This is also a first for the term "political team." Past justices might have used the phrase "presidential appointees." But Kagan derides the act of governance as just politics.
In a parenthetical, Kagan takes a shot at Republican legislators who voted to gerrymander as a mark of "political loyalty" to Trump:
(Again, this was in those innocent days—prior to Texas's redistricting—when partisan gerrymanders seemed undemocratic or at least unsavory, rather than a mark of political conviction or loyalty.)
I sometimes find Justice Kagan's parentheticals to be witty or whimsical. This one was a self-own. In the process of castigating politicians for being partisan, Kagan herself engages in partisanship. The only difference, of course, is that politicians are allowed to be partisan. Judges are not.
A few more points about LULAC before I move on. Justice Kagan faulted the majority for deciding the case "over a holiday weekend":
Yet this Court reverses that judgment based on its perusal, over a holiday weekend, of a cold paper record.
What exactly is the point here? Should the Court not act over a holiday weekend? Should the Court have taken a break for turkey and yams? Even Denny's is open on Thanksgiving.
And to be fair, the fact that this case stretched into Thanksgiving was probably Justice Kagan's fault. The emergency application was filed on November 21. The response was due on November 24. Thanksgiving was on November 27. The per curiam opinion was probably written in a few hours. To the extent this case stretched across a holiday weekend, it was likely to give Justice Kagan time to write a seventeen page dissent.
Indeed, it is not clear whether the majority even had time to review Justice Kagan's dissent. Justice Alito hinted that he wrote a short concurrence so as to not further extend the delay.
Texas needs certainty on which map will govern the 2026 midterm elections, so I will not delay the Court's order by writing a detailed response to each of the dissent's arguments.
Then again, if the Supreme Court majority could wait about a week for Justice Kagan's dissent, surely Judge Brown could have waited another 24 hours for Judge Smith's dissent.
I am working on an article about unilateral SCOTUS reform. One of my proposals would allow six Justices to immediately release any pending matter; dissents can come later. I think this case would have been a useful time to exercise this prerogative. Here in Texas, there was massive confusion over the past two weeks, as candidates had no clue which districts they were even running for. This period of uncertainty was extended to allow a dissenting Justice to write an opinion that few will read.
Finally, Justice Kagan faults the majority for relying on a "cold paper record." What other type of record is there? All records are cold. I suppose her point is that the "clear error" standard is used because judges are reviewing a cold record, while the trial judges saw the proceedings live. The majority's ruling was based entirely on questions of law, for which the factual determinations are not relevant.
