The Volokh Conspiracy

As a practical matter, the Voting Rights Act helps one political party and hurts the other party. When a Republican legislature draws a gerrymandered map, Democrats will claim that the map harms African American or Hispanic voters. But when a Democratic legislature draws a gerrymandered map, Republicans will have a hard time raising a Section 2 claim that the map harms White voters. Illinois could gerrymander all Republican districts off the map, without any meaningful legal challenges. But if Mississippi or Louisiana tried to gerrymander all the Democratic districts off the map, there would be immediate legal challenges. Indeed, these southern states are forced to create "opportunity" districts to ensure minority voters can elect Democratic politicians.

This is the asymmetry of the Voting Rights Act. Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.

This asymmetry is not a bug of modern Voting Rights Act jurisprudence. It is a feature. Is it any wonder that Republican groups are lining up behind Louisiana in Callais to weaken, if not nullify Section 2?  And is it any wonder why Democratic groups are fighting to save Section 2?

Nick Stephanopoulos has a post at the Election Blog that explains what might happen if the Callais challenge is successful:

A final feature of the SG's proposal is that it would doom most Section 2 claims in areas where most minority voters are Democrats and most white voters are Republicans. In these areas—which notably include much of the South—an additional minority-opportunity district can usually be drawn only at the cost of an existing Republican district. This swap of an old Republican district for a new minority-opportunity district, however, is exactly what the SG's proposal would prevent.

But what is the status quo now? Currently, Democratic voters in the South benefit from the VRA, while Republican voters in the North do not. Much turns on what the baseline is.

I see a similar argument over mid-decade redistricting. If Texas redistricts, then California should redistrict as well. Fair elections, the argument goes, depends on red states not having an advantage over blue states. But this is precisely what the VRA accomplishes: burdening red states, but not burdening blue states.

Callais would eliminate the asymmetry. Going forward, neither party would benefit from a VRA bonus. Critics may charge that this approach is unfair or unjust, but I think that doesn't fully recognize that for decades, the VRA would typically only help one side of the political spectrum. It is no longer 1964. As Shelby County explained more than a decade ago, "things have changed dramatically."

I'm not convinced the sky will fall after Callais. We were told the sky would fall after Rucho v. Common Cause, and it didn't. Now both parties are seeking to engage in overt partisan gerrymandering. I think most predictions of doomsday fail to account for how political groups respond to new dynamics.

United Airlines is installing Starlink WiFi on its fleet. Today, my flight from Indianapolis to Houston has Starlink. It is an absolute game changer. I had download speeds in excess of 250 Mbps, and upload speeds of nearly 30 Mbps.

When I have a flight, I deliberately schedule activities that do not require accessing the internet, as connectivity may be slow or non-existent. But now with Starlink, I can do anything in the air that I could do on the ground. Indeed, it should be possible to listen to Zoom calls, aided by closed captioning.

Yesterday, the Fifth Circuit granted rehearing en banc in W.M.M. v. Trump. This case, formerly known as A.A.R.P. v. Trump, presents a challenge to President Trump's use of the Alien Enemies Act to remove certain aliens. On September 2,  the merits panel opinion ruled against Trump. Judge Southwick wrote the majority opinion, and he was joined by Judge Ramirez. Judge Oldham wrote a blistering dissent.

At the time, I wondered whether the Solicitor General would simply seek certiorari, or seek rehearing en banc. The former option would get a resolution sooner, but the government may have worried that the Court would not grant review in the absence of a circuit split. So filing an en banc petition was probably the safer bet. And indeed, the government sought rehearing en banc, which was granted.

The Fifth Circuit has seventeen active members, which means that at least nine members voted to rehear the case. There are decent odds that if nine members vote to rehear the case, then nine members will vote to reverse the panel opinion, but those sorts of predictions are tough to make. And as often happens on the Fifth Circuit, the en banc court may fracture, and there will be a judgment, but not a single controlling opinion. One judge usually simply concurs in judgment, making a majority even tougher to cobble together.

After the court granted rehearing, Judge Southwick issued an unusual opinion: he dissented from the grant of rehearing en banc.

A prompt, final resolution of this case is in the legitimate interests of all parties, whatever lesser interests of either side of the litigation might be served by the delay of en banc in this court. It is, I believe, also in the country's best interest that additional, necessarily inconclusive, inferior-court determinations not delay the Supreme Court's reclaiming this case. I therefore respectfully dissent from the grant of rehearing en banc.

We all know what a dissental is. There is also a disgrantle, as Judge VanDyke explained: a dissent from the grant of rehearing en banc. My colleague Eugene Volokh described the disgrantle as a "nonce word," which is a "on one specific occasion or in one specific text or writer's works." Well, I'm using disgrantle here.

I searched the Fifth Circuit database for the phrase "dissenting from the grant of rehearing en banc." No other hits came up. I know of at least one instance in which this mechanism was used. Way back in 2008, Judge Smith dissented from the grant of rehearing en banc, though he styled his opinion as just a dissent: United States v. Seale, 550 F.3d 377 (5th Cir. 2008). I'm sure there are other such cases, but they are rare.

I am aware of one case where four members of the Supreme Court dissented from the grant of certiorari: American Tradition Partnership v. Bullock (2012)

I also want to flag Judge Ho's brief concurrence in W.M.M.:

Our colleague opposes rehearing en banc on grounds of delay. But the burden of any delay falls on the Government. And the Government asked for rehearing en banc, rather than seek certiorari in the Supreme Court. Perhaps we could have minimized delay by declaring last year in United States v. Abbott, 110 F.4th 700 (5th Cir. 2024), that the Judiciary has no business telling the Executive that it can't treat incursions of illegal aliens as an invasion. [FN1] But we are where we are. The issue is obviously compelling. I concur in the grant of rehearing en banc.

FN1: As the Government points out in its petition for rehearing en banc, "[t]he border crisis grew so dire that Texas invoked the constitutional promise that the federal government 'shall protect each of [the States] against Invasion.'" Pet'n for Reh'g En Banc 4, W.M.M. v. Trump, No. 25-10534 (5th Cir. Sep. 22, 2025) (quoting U.S. Const. art. IV, § 4, and citing Letter from Governor Abbott to President Biden 1-3 (Nov. 16, 2022)) (cleaned up).

Well before Trump came into office, Judge Ho opined that determinations under the Invasion Clause were not justiciable. (See Rob Natelson's post on this opinion.) Judge Ho was well ahead of the curve. If Judge Ho was right, then W.M.M. becomes a much easier case. Ho's view did not receive any other votes in 2024. And I was surprised that Judge Oldham's dissent in W.M.M. did not cite Ho's concurrence. We will see what happens on the en banc court this time around.

Civitas has published my new essay, titled Trump Is Refighting The "War" That Congress and the Burger Court "Waged" Against President Nixon. This essay brings together several threads about Trump, the Roberts Court, the Burger Court, and the fallout from Watergate.

Here is a snippet:

The epochs of constitutional law in the twentieth century are well known. During the so-called Lochner Era in the early twentieth century, the Court carefully scrutinized federal and state economic regulations. The New Deal Court reversed course and largely deferred to these laws. The Warren Court is well known for expanding civil and criminal rights, while reinforcing democratic processes. The Burger Court, if it is remembered at all, unleashed Roe v. Wade (1973) on our polity. But over the ensuing three years, the Burger Court decided three landmark cases that drastically and hastily transformed the structure of the federal government. All of these decisions resulted directly from the Watergate scandal. First, United States v. Nixon (1974) permitted a federal prosecutor to issue a subpoena to President Nixon to produce the Watergate Tapes. Second, Train v. City of New York (1975), found that President Nixon could not "impound," or withhold certain funding. Third, Buckley v. Valeo (1976) largely upheld the Federal Election Campaign Act, as well as the Federal Election Commission that enforces the Act.

There is a fourth decision that bears mentioning. The Ethics in Government Act (1978) created the independent counsel statute as a means to prevent future Watergates. This provision empowered a prosecutor to investigate the executive branch with sweeping authority and broad independence. The Rehnquist Court upheld this statute in Morrison v. Olson (1988) over the vigorous and legendary dissent of Justice Antonin Scalia.

The Supreme Court has already taken steps to deconstruct many of these precedents. Citizens United v. FEC (2010), followed by McCutcheon v. FEC (2014), more or less rendered Buckley a nullity, as vast amounts of money can now indirectly flow to the political process. Both Republican and Democratic politicians have benefited from these rulings. Trump v. United States (2024) granted President Trump broad immunity from criminal prosecutions and scaled back the import of the Watergate Tapes case. I have called on the Court to reconsider United States v. Nixon, which was an early manifestation of lawfare. And this term, the Supreme Court is poised to undermine Morrison by overruling Humphrey's Executor v. FEC, a New Deal era precedent that upheld so-called "independent" agencies.

I write that the Supreme Court's recent decision in the AIDS Vaccine Coalition case should not be viewed as a narrow, one-off. Rather:

This ruling is part of a series of cases in which the Court is scaling back Congress's efforts to control the presidency in the wake of Watergate. An entire structural edifice of government was created to constrain the executive. And the Roberts Court is now dismantling those structures.

I think this framing helps to understand why Justice Kagan referred to Congress as waging a "war" against President Nixon:

In dissent, Justice Kagan charged that the majority misread the Nixon-era statute. But more importantly, Kagan faulted the conservatives for ignoring the context in which the Impoundment Control Act arose. She reminded everyone that the "ICA [was] enacted after Congress waged war with President Nixon over impoundments." Kagan added that "Congress w[o]n its confrontation with the President." It is unconventional for a Supreme Court opinion to describe Congress as waging a war and winning a confrontation with the president. Supreme Court Justices are not political commentators.  Yet Kagan, perhaps unintentionally, identified the reason why so much of constitutional law went awry.

Trump is now successfully refighting that war.