The Supreme Court Has Abandoned All Pretense

For the court’s conservatives, the only consistency is their inconsistency. Still, things rather conspicuously keep going the GOP’s way.

In the old days, it used to require actual work to show that the Supreme Court justices were driven by their personal beliefs instead of straightforwardly applying law, precedent, and procedure. You’d have to connect dots across multiple rulings and explain intricate legal doctrines. Even then, it might be too speculative to be truly persuasive.

These days, I could probably convince my two-year-old son of the high court’s shenanigans just based on a single day’s rulings. Such a day arose on Tuesday this week when the court handed down two major shadow-docket rulings. The two decisions are completely unrelated, save for the common flaws that they expose among the conservative justices’ approach to their jobs.

The first case, Malliotakis v. Williams, is a challenge to the recently redrawn borders of New York’s eleventh congressional district. The state redrew its boundaries to, among other reasons, make it harder for New York Representative Nicole Malliotakis, a Republican, to win re-election this fall. She is one of many incumbents who will likely lose their seats amid the nation’s gerrymandering wars over the last eight months.

Malliotakis and a coalition of other litigants filed a lawsuit after the redrawn maps were issued, arguing that the Independent Redistricting Commission had impermissibly relied on race when it redrew her district’s boundaries. The state trial court in New York agreed, concluding that the commission had illegally moved groups of Black and Hispanic voters into her district that would ultimately dilute their votes. It ordered the state to draw the district as a “crossover district,” meaning one where minority voters would have a decent chance of electing their own member of Congress.

Racial gerrymandering is back in vogue these days after the Supreme Court signaled last year that it would strike down part of the Voting Rights Act of 1965 to allow states to engage in it more freely. According to the offending states, when legislative maps are redrawn to remedy racial gerrymandering, that action itself amounts to racial gerrymandering and is constitutionally impermissible. If the court accepts that argument in Louisiana v. Callais this term, it will destroy minority political representation in Congress in the long term.

The court’s decision in Callais has yet to come out, however, which means that any interim case where the justices discuss the matter is destined to merit heightened attention. While the trial court sided with Malliotakis and her allies, it also effectively forbade the state from using its existing map by ordering the state’s redistricting commission to draw a completely new one. Malliotakis et al. opposed that move, arguing that the trial court had invented a new race-based standard while ruling in her favor.

Their next step was to ask both New York’s intermediate appeals court and its highest appeals court at the same time to overturn the injunction. (I won’t use their actual names because the good people of the state of New York, for reasons known only to them, use confusingly different names for their state courts than the rest of the nation.) The state’s highest court transferred the case to the intermediate court on jurisdictional grounds, while the intermediate court........

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