With Alabama Republicans doubling down on their racially discriminatory congressional map after just losing at the Supreme Court, you might be wondering: What’s their plan (if they have one)?
That is, since the high court ruled against an illegal map of theirs in June, how could they expect to prevail by blowing off that ruling?
One possible answer: Brett Kavanaugh.
The Donald Trump-appointed justice cast the fifth vote in the 5-4 ruling in Allen v. Milligan, which truly was the surprise ruling of the term. But the reason I say he cast the tiebreaking vote is that he didn’t simply sign on to Chief Justice John Roberts’ majority opinion, like the three Democratic appointees did.
Rather, Kavanaugh wrote a concurring opinion laying out some thoughts of his own. And while it shouldn’t be read to bless Alabama’s ongoing resistance, the separate opinion leaves open the possibility that he will go the other way in the future.
In that concurrence, Kavanaugh wrote that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” but added that Alabama “did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
Again, that doesn’t mean Alabama Republicans will win if the case goes back to the high court. But the reality is that the Milligan majority does not appear rock-solid. In any event, the ruling did not strike fear into the hearts of the state lawmakers, who are content to test the brand-new ruling, if not outright defy it.
According to the Alabama Political Reporter:
APR sources said that Republican lawmakers believe their D.C. connections have ‘intelligence’ that Associate Supreme Court Justice Brett Kavanaugh, who voted with the majority in Milligan, is open to rehearing the case on its merits.
It’s unclear what, if anything, that intelligence is. But these D.C. connections may have simply read Kavanaugh’s four-page concurrence. Saying nothing of the fact that he sided with the 5-4 shadow docket majority that let the illegal map be used in the 2022 midterms, before going the other way in June.
Indeed, Alabama reportedly cited Kavanaugh’s concurrence in the latest round of litigation after the Supreme Court’s June ruling, which could lead to another outing with the justices.
In Milligan, the 5-4 majority affirmed a lower court’s ruling that Alabama’s map, which had only one majority-Black district out of seven, likely violated the Voting Rights Act. More than a quarter of the state’s population is Black. Yet state Republicans still refused to create a second majority-Black district.
It may also be worth pointing out that Kavanaugh sees his siding with the Milligan majority as important. As I noted previously, Politico reported on the justice’s “unusual move” at a recent judicial conference, where he pointed to “several recent rulings that, he implied, show that the court is not under the sway of the Republican Party.” One of them was Milligan.
Of course, those remarks don’t bind Kavanaugh’s future opinions. His opinions don’t even bind his future opinions.
But if the case gets back to the justices, Kavanaugh could be central to the outcome.
