Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented Thursday from the court’s decision to halt an outlier federal appeals court ruling that would have further limited the Voting Rights Act.
The court’s latest shadow docket move is at least a temporary reprieve for Native American tribes and individuals who sued over a North Dakota legislative map under part of the act called Section 2, which bars discriminatory voting practices.
It’s also a temporary reprieve, of sorts, for the Voting Rights Act itself.
In typical shadow docket fashion, neither the Supreme Court majority nor the dissenting justices explained themselves in the unsigned order.
A divided panel of the U.S. Court of Appeals for the 8th Circuit had ruled that private parties (as opposed to the government) can’t use federal law to enforce Section 2. That led the plaintiffs to seek emergency high court relief, warning that the St. Louis-based circuit’s stance would “knee-cap Congress’s most important civil rights statute.” They wrote to the justices that the situation is especially dire in this case because North Dakota “has a long and sad history of official discrimination against Native Americans that persists to this day.”
In typical shadow docket fashion, neither the Supreme Court majority nor the dissenting justices explained themselves in the unsigned order.
At any rate, the court’s decision to grant temporary relief isn’t entirely surprising, due to the 8th Circuit’s unusual position on the Voting Rights Act in contrast with other federal appeals courts. Each circuit can rule differently on a given issue unless and until the Supreme Court sets a nationwide standard.
Also, Chief Justice John Roberts and Justice Brett Kavanaugh have previously aligned with the Democratic appointees on voting rights. Going the other way, Thomas, Alito and Gorsuch have previously stood apart from their colleagues in election litigation. Unsuccessfully opposing the pause on the circuit ruling, state officials urged the justices to “follow the normal course” and let the circuit ruling take effect. To be sure, this is only a temporary measure, and the Supreme Court can weigh in later in the litigation with a fuller ruling that’s more restrictive of voting rights. But for now, the circuit’s outlier ruling is halted. 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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