The Volokh Conspiracy
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SCOTUS Summarily Reverses Three-Judge Panel In Mandatory Jurisdiction Case Based On Earlier Shadow Docket Ruling In Same Case
Judge Brown's "bumpy night" ends not with a bang, but a whimper.
Today, the Supreme Court issued a very unusual order in a very unusual case.
In late November, a three-judge panel found that Texas's redistricting plan was motivated by race. Judge Jeffrey Brown, a Trump appointee in Galveston, joined (and likely wrote) the majority opinion. Judge Jerry Smith, a Reagan appointee in Houston, wrote a blistering dissent. It began:
"Fasten your seatbelts. It's going to be a bumpy night!"
Indeed, this night would be very bumpy.
Texas Solicitor General Will Peterson sought an emergency stay of the preliminary injunction with the Supreme Court.
On December 4, the Supreme Court granted an emergency stay by a 6-3 vote. There were two paragraphs of substantive analysis. The second paragraph focused on the timing, as the District Court issued its order after voting had already begun. The first paragraph offered two reasons why "Texas is likely to succeed on the merits of its claim that the District Court committed at least two serious errors." First, "the District Court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature." And second, "the District Court failed to draw a dispositive or near-dispositive adverse inference against respondents even though they did not produce a viable alternative map that met the State's avowedly partisan goals." The Supreme Court distilled Judge Smith's detailed dissent to a few words.
This stay order allowed the maps to go into effect for the 2026 midterm elections. But it did not end the case. Texas still had to challenge the preliminary injunction in the normal course.
On January 13, the Texas Solicitor General filed what is known as a jurisdictional statement. Unlike a usual discretionary case, which involves a petition for a writ of certiorari, Congress designated appeals from three-judge panels in redistricting cases as "mandatory" jurisdiction. The Appellants (not Petitioners) asked the Supreme Court to note "probable jurisdiction" in the case. The Appellees asked the Supreme Court instead to affirm.
Texas did not ask the Supreme Court to summarily reverse the case. Instead, the state wanted the Court to hear oral argument to clarify the Alexander issue:
Plaintiffs alternatively ask this Court to vacate the preliminary injunction (presumably without opinion), remand, and delay review until an appeal following final judgment. See, e.g., Brooks Mot. 37; Gonzales Mot. 35. Although the district court's errors are straightforward and may well warrant summary reversal, this Court should provide guidance for the district court in this case and future cases. The standard for issuance of a preliminary injunction in redistricting litigation is an important issue, and as this case illustrates, the erroneous grant of a preliminary injunction can create electoral chaos and require expedited action. To avoid such disruption in future cases, this Court should squarely hold that Alexander's alternative-map requirement and the presumption of legislative good faith apply with equal force at the preliminary injunction stage. And unless they are corrected by this Court, the additional errors discussed above may well recur at trial, leading to reversal and a waste of both judicial and party resources.
But the Supreme Court took a difference path. Today the Court issued an order in Abbott v. League of United Latin American Citizens (25-845):
For the reasons set forth in Abbott v. League of United Latin American Citizens, 607 U. S. ___ (2025) [25A608], we reverse the District Court's judgment. Justice Sotomayor, Justice Kagan, and Justice Jackson dissent from the Court's summary reversal.
Do you follow? The Supreme Court reversed the District Court's preliminary injunction in light of the emergency docket order staying the District Court's preliminary injunction. It is a bit recursive, but it makes sense. Again, Lulac is a mandatory jurisdiction case, not a discretionary certiorari case. I presume that the decision to summarily reverse required a threshold finding of probable jurisdiction, but the Court does not say so expressly.
I can't recall any instance where the Court summarily reversed in a mandatory jurisdiction case. It is common enough for summary affirmances. Bluman v. FEC (2012) was one such recent case. In my article on bilateral judicial reform, I proposed that all mandatory cases should be submitted for oral argument. At the time, I was responding to the Court issuing a summary affirmance in a mandatory jurisdiction case. The thought never crossed my mind that the Court would summarily reverse in a mandatory jurisdiction case. And I could have never fathomed the Court would summarily reverse in a mandatory jurisdiction case based on an emergency docket order. Yet, here we are.
Lulac was distributed for the conference on April 24, and decided on April 27. This does not seem to have been a hard one for the Court. They didn't want to decide the tough merits issue so just got rid of it. Justices Sotomayor, Kagan, and Jackson didn't even bother writing a dissent.
Just last week, the Supreme Court GVR'd a case based on an unargued per curiam decision. Now, the Supreme Court is summarily reversing a district court's preliminary injunction based on an emergency docket ruling that stayed the district court's preliminary injunction. It would have been impossible for the district court to have even considered that ruling when issuing the PI, as it did not exist yet.
Usually, a summary reversal is reserved for the rare cases where the lower court clearly violated a precedent and there is no purpose to hold more proceedings. But here, the district court is summarily reversed for not anticipating what the Supreme Court would later do to reverse that same district court. This is not like Judge Murphy and his colleagues who are reversed twice in the same case, consecutively. Here, Judge Brown was reversed twice, having only issued one opinion.
Going forward, this case is not yet over. There was only a preliminary injunction issued. In theory at least, the case can go through discovery, summary judgment, and perhaps trial. But what's the point? The Supreme Court has spoken twice. Does anyone think the outcome would be any different after discovery? Moreover, by the time this case actually gets to a final judgment, 2030 will be around the corner, and there will be new maps. The courts need to get out of the business of reviewing legislative maps. Let Texas be Texas and let Virginia be Virginia. The chips will fall where they may.
What comes on Wednesday? Maybe the Court was clearing the brush in advance of Callais.
