The latest order from the Supreme Court reminds us that the court exercises significant control over its docket and is willing to use its power to move the law in the majority’s preferred direction. The justices exercise this power not only in how they answer the legal questions before them but, as this latest case shows, by deciding which questions to answer in the first place.
Here, the question the court chose to pose to the parties could further gut the Voting Rights Act in the upcoming term.
They posed the question in an important redistricting appeal from Louisiana over congressional districts in the state. The justices heard arguments this past term but didn’t reach a decision. Instead, they said in an order in late June — over dissent from Justice Clarence Thomas — that the court would in “due course” issue an order “scheduling argument and specifying any additional questions to be addressed in supplemental briefing.”
That order came Friday.
It didn’t schedule another argument yet, but it did specify another legal question, and it’s a big one:
Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.
Election law expert Rick Hasen explained that the court seemed to indirectly ask “whether Section 2 of the VRA [Voting Rights Act], at least as to how it has been applied to require the creation of majority-minority districts in some circumstances, violates a colorblind understanding of the Constitution.”
If that is, in fact, what the court is after, then the act — which the Roberts Court has already hobbled — is poised for further paring. Such a colorblind reading of the Constitution has animated the majority’s thinking, for example, on affirmative action, which led to that policy’s gutting on constitutional grounds in a party-line ruling two years ago. Thomas cited the affirmative action case in his dissent from the court’s refusal to decide the Louisiana redistricting case in June. Now, one of the questions heading into in the already heavy Supreme Court term starting in October is what voting rights will look like when the term ends. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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