Late Tuesday evening, the Supreme Court granted Alabama’s emergency motion to revise its legislative maps following Callais. The per curiam opinion offers a handy summary of Callais and expressly extends that doctrine to the vote dilution context. The merits analysis stretches one paragraph, but here I want to focus on a single critical sentence:
As to intentional vote dilution, the District Court did not heed the presumption of legislative good faith, see Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 10 (2024), because it interpreted the State’s legal disagreement with the court’s earlier remedial order as proof of discriminatory animus. Cf. Abbott v. Perez, 585 U. S. 579, 608–609 (2018).
When I read the Alabama district court’s order, I had the same reaction: not following a court’s order that was vacated cannot be used to demonstrate a discriminatory intent. The Supreme Court’s decision to vacate the district court’s order rendered that order null and void, as if it had never existed. The district court cannot then turn around and claim that the failure to follow its non-existent order is proof of animus. I meant to write on this point, but I didn’t get a chance. (Thanks Judge Betsy.) Now is a good time.
I’ve written about inferior court supremacy, the notion that a single district court can settle the meaning of the Constitution. CASA v. Trump went a long way to rebutting this presumption by firmly establishing the principle of Supreme Court judicial supremacy. I have problems with this aspect of CASA, but that is now the supreme law of the land. Now, the Supreme Court’s emergency docket order in Allen v. Milligan further clarifies how unsuperior the inferior courts are.
Litigants, including state governments, should not violate a binding court order. Doing so would lead to contempt of court, which did not happen here. Instead, the district court ordered Alabama to adopt a new map. Alabama chose to adopt a map that the state found consistent with Supreme Court precedent. The District Court disagreed. The state had the right to adopt that new map, knowing it would be challenged in court, and the Supreme Court would ultimately resolve the matter on its mandatory jurisdiction docket. This is more-or-less what Justice Alito discussed on the cited pages of Abbott v. Perez.
There was no defiance of any binding court order. However, Justice Sotomayor’s dissent, repeatedly charges the state with defying and flouting the district court’s order:
“Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court”
“It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.”
“Second, the Court should not have rewarded Alabama’s defiance of court orders and blatant gamesmanship throughout this litigation.”
“Alabama’s hands, however, are far from clean. Instead, it defied the District Court’s order in these cases even after this Court affirmed it. . . .”
“First, Alabama intentionally chose to flout a preliminary injunction that this Court affirmed in Allen.”
Justice Sotomayor explains that Alabama hoped the Supreme Court would agree with the state on appeal:
Of course, Alabama had every right to raise its “legal disagreement,” ante, at 3, with the District Court’s original preliminary injunction through the appellate process orotherwise. The course of action the State chose here, however, was not the proper way of doing so. Had Alabama complied with the preliminary injunction and drawn a map with a second opportunity district, it could have relitigated the merits in the ordinary course: first at a trial on the merits, and then on appeal. At either stage, it could have raised the arguments that the litigants in Callais raised and prevailed on, or advanced challenges to the District Court’s remedial order. Instead, Alabama willfully drew a map that flouted the District Court’s preliminary injunction and hoped that this Court would eventually see things its way. After today, it is hard to call Alabama’s cynical gambit anything other than a success, and the Court’s rewarding of Alabama’s behavior anything other than a blow to the rule of law.
Sotomayor also quotes from the Speaker of the Alabama House:
The record is bereft of evidence suggesting that Alabama took seriously this Court’s finding of discriminatory vote dilution in Allen. Speaker of the Alabama House of Representatives Nathaniel Ledbetter put it bluntly: “‘If you think about where we were, the Supreme Court ruling [in Allen] was five to four. So there’s just one judge that needed to see something different.'”
This action is only improper if you accept the notion that district courts can settle these constitutional cases. But if you agree with CASA that the Supreme Court is supreme, then Alabama’s actions are the only way to test the validity of a new maps. And litigants are well within their rights to hope a 5-4 decision at one stage of the litigation goes 5-4 the other way. Dobbs got to the Supreme Court because Mississippi wanted to test Roe. Callais got to the Supreme Court because Louisiana wanted to test Gingles. And Allen made several trips to the Supreme Court for similar reasons. Justice Sotomayor is wrong on this point.
