Justice Brett Kavanaugh cast the tie-breaking vote against Alabama’s congressional map in June. But with the state thumbing its nose at a court order to comply with the Voting Rights Act, a new report on how the surprise 5-4 Supreme Court ruling came together only reinforces Kavanaugh’s central role in the dispute as the case heads toward the justices again.
According to a CNN report published Friday, Chief Justice John Roberts persuaded Kavanaugh to join Roberts’ opinion in Allen v. Milligan.
“Roberts and Kavanaugh enjoy a decades-old kinship and often confer privately on matters,” CNN reported. “Most internal debate takes place among all nine justices, whether in regular closed-door sessions or the circulation of memos. But Roberts regularly reaches out to Kavanaugh behind another set of closed doors to understand his views and, as happened here, to secure his vote.”
The Supreme Court majority ultimately affirmed a lower court ruling that Alabama’s voting 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. The outcome was surprising because Roberts had long acted against voting rights and Kavanaugh had sided with Alabama in an earlier part of the litigation that let the state use the illegal map in the 2022 midterms.
Yet, despite the Supreme Court ruling, Alabama Republicans have still refused to create a second majority-Black district, leading them to get smacked down by the lower court last week, with that panel noting it was “disturbed” by the state’s defiance. The state has vowed to appeal, putting the case on course to be decided by the justices again. That raises the question of whether that same high court majority would hold. The answer, again, may come down to Kavanaugh, who, despite being convinced enough to join Roberts’ bottom line, still wrote a separate concurrence that apparently has led Alabama to hold out hope he might flip again. In that concurrence, Kavanaugh wrote, among other things, that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” but he added that the state “did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” Though one would think Kavanaugh shouldn’t need persuading to hold the state to the terms of the just-issued Supreme Court ruling, this latest report reminds us that the Donald Trump appointee is still the one to watch as the case continues.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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