Rumblings About Callais

The Supreme Court heard oral argument in Louisiana v. Callais back on October 15. At the time, there was a broad consensus the Court would severely weaken, if not gut Section 2 of the Voting Rights Act. The only question was when the Court would rule. Depending on how quickly the opinion came out, the Louisiana legislature might be able to hold a special session to redistrict for the midterm.

Fast forward four months to the present, and there is no opinion in Callas. Indeed, the Court also hasn't decided the tariffs case, Slaughter, or anything else of substance yet.

Today, Rick Hasen has a post on the Election Law Blog, titled "A Justice Alito-Authored Majority Opinion in Callais Effectively Killing Off the Voting Rights Act Might Not Get 5 Votes; What Choices Do the Court's Conservatives Have?"

Rick explains that he has "now gone back and read Allen v. Milligan, and in particular Justice Alito's dissent." Rick thinks Justice Alito would write an opinion that "would doom most, if not all, Section 2 cases in the redistricting context." That was certainly how I read the oral argument four months ago. I didn't need to re-read a 2023 case to reach that conclusion.

Then Rick offers some fairly specific speculation about how Justice Alito might not get five votes for that sort of majority opinion.

I could easily see Justice Alito writing an opinion like this. The question is whether he could get a majority to endorse it. Here, counting noses, I'm not sure. This part of the opinion was joined only by Justice Gorsuch, not by Justice Thomas, who has taken the view that these cases should not be nonjusticiable, and not by Justice Barrett, who joined the other parts of Justice Thomas's dissent (but not Alito's) that sees Section 2 as unconstitutional if it means what the majority said it meant. Even if Thomas and Barrett signed on, could they get Roberts or Kavanaugh? That's not clear. The majority opinion written by Roberts, discussing what Alito wrote, says: "JUSTICE ALITO argues that "[t]he Gingles framework should be [re]interpreted" in light of changing methods in statutory interpretation. Post, at 10 (dissenting opinion). But as we have explained, Gingles effectuates the delicate legislative bargain that §2 embodies. And statutory stare decisis counsels strongly in favor of not "undo[ing] . . . the compromise that was reached between the House and Senate when §2 was amended in 1982." Brnovich, 594 U. S., at _ (slip op., at 22)." Kavanaugh in his separate opinion seemed to agree: "I agree with the Court that Alabama's redistricting plan violates §2 of the Voting Rights Act as interpreted in Thornburg v. Gingles, 478 U. S. 30 (1986)."

I don't disagree with anything Rick wrote here. But all of this prognostication could have been made four months ago. The usual workflow is that people write about a case before it is argued, write about a case immediately after it is argued (before the conference), and then let the matter sit until the case is decided. That is, unless something prompts people to write about a pending case.

My ears perk up when people speculate about how a Supreme Court opinion is developing long after oral argument. Back in 2012, there were leaks from the Obamacare litigation. People on both sides of the case tried to sway the Justices one way or the other, as Chief Justice Roberts changed his vote. About a month after Bostock was argued, I wrote a post about a potential leak suggesting that Justice Gorsuch was going to vote with Justice Kagan. Shortly before Politico published the leaked opinion from Dobbs, I speculated that there was leak that the Chief Justice was trying to flip votes. And despite Chief Justice Roberts's NDA, leaks from the Count continue.

I'm not ready to speculate there was a leak in Callais, yet. Rick's post may just be an attempt to grapple with the fact that we still don't have a decision yet. It is certainly likely that a fractured majority opinion will take more time. But if there is another article, in close proximity, about the Justices' inability to form a five member bloc, I'll update my speculation.

Finally, Rick closes with this admonition:

It's possible that one or both of these Justices would throw out Gingles, perhaps citing constitutional avoidance. But it's just as likely given Kavanaugh's concurrence that he would vote to hold Section 2 unconstitutional.

That might make a majority in theory to overturn Section 2 as unconstitutional, but the Court would take a big political hit in an election year. Not sure that Kavanaugh and Alito would want to hurt the Republican Party further in the midterms.

I still believe that the Justices are trying to get the law right, and not trying to help one political party over the other. But we have seen this charge so many times. We heard it while the Affordable Care Act case was pending, while King v. Burwell was pending, while Dobbs was pending, while Trump v. United States was pending, and so on. We are always one year away from a general or midterm election. Is it the case that conservative judges can only do conservative things in odd-numbered years? If the conservatives on the Court wanted to help the Republican party in perpetuity, they would follow Justice Alito's lead. I am not at all convinced that any districts will be swayed in the slightest based on what the Supreme Court does here. Indeed, that is the point of partisan gerrymandering. If Section 2 is gone, swing districts that could be swayed by a Supreme Court decision will fade away. We should not be blind to the asymmetry that the Voting Rights Act helps only one side of the aisle.

Update: Rick replies that I am delusional.