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Wednesday, March 25, 2015

Fair-weather color-blindness in the Alabama Redistricting Case?

Have the Republicans on SCOTUS gone all squishy on color-blindness? In Alabama Black Legislative Caucus v. Alabama, the Republicans, minus Kennedy, dissented from Breyer’s five-vote majority opinion holding that the Alabama legislature must have a better reason for a rigid racial quota than obedience to a federal law that does not, in fact, require such quotas. The Alabama legislature had followed a self-conscious and explicit policy of insuring that majority-minority “safe” districts never dropped below 70% black population, claiming that the Voting Rights Act made them do it. One would think that Republican justices’ famous adherence to the color-blind constitution would make them suspicious of such a quota and eager to construe narrowly a federal statute proffered to justify such a practice of super-safe Black districts . Remember the Chief's crisp catchphrase? “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race”? Yet Roberts joined Scalia’s dissent along with Alito and Thomas in proclaiming that the Alabama legislature was allowed to use a rigid racial quota, because the plaintiffs had not sufficiently pled how race had shaped specific gerrymandered districts. Thomas wrote separately to explain that, much to his dismay, the Voting Rights Act’s anti-retrogression provision required “max-black” districts.

A cynical Realist might be forgiven for suspecting that the Republican justices pulled their color-blind punches to benefit Republican state legislators. Republican state legislatures in the South have benefited enormously from packing Black voters into a few super-safe districts that notoriously hurt Black voters and racially polarize elections by reducing the number of seats that they can influence and splitting apart black-white coalitions. The Alabama legislature’s simple 70% solution was a nakedly partisan effort to hide behind the VRA for electoral gains. Had Thomas cared to do so, he could have adopted a savings construction of the VRA to curb such efforts, because neither the notoriously vague “predominant motive” test nor the equally vague VRA section 5 unequivocally sanctioned such behavior. Likewise, Scalia could have adopted a charitable reading of the plaintiffs’ pleadings that would have kept the the plaintiffs in play – a reading that would especially acceptable given that the underlying doctrine is so incoherent. What else but partisan loyalty, then, could cause them to pull their color-blind punches?

Of course, one could easily imagine Thomas’ and Scalia’s asking a similar question of Justice Ginsburg, who dissented in Miller v. Johnson back in 1995 with the complaint strikingly similar to Justice Thomas’ now -- that the “Court's disposition renders redistricting perilous work for state legislatures.” Scalia and Thomas might reasonably wonder whether Ginsburg has now more of a stomach for imposing such perils now that the state legislatures are Republican. Why, they might reasonably ask, does the Court stretch to enforce the murky “predominant motive” test only now, when the beneficiaries are Republicans?

The problem is not that one side or another has not stuck with constitutional principles. The problem, instead, is that neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes. This is a problem of signaling credible commitment -- the heart and soul of all constitutions -- not a problem of moral failure. After the jump, some thoughts on how to make commitments to doctrine stick.

First, recognize that constitutional doctrines are much like contracts defining the contracting parties’ sequential performance: They help overcome the problem of credible commitment by reassuring those who suffer from a doctrine today that they will benefit from it tomorrow. The conservative businessman might not like the application of the principle of free speech to protect Communists today, but they will grudgingly accept such protection for the sake of safeguarding, say, campaign expenditures tomorrow.

Second, recognize that doctrine cannot provide this reassurance as effectively if the doctrine consists of mushy, case-by-case, ad hoc standards. Such doctrine has been praised as wisely practical under-theorized agreements. But nothing is so impractical as a contract that is so mushy that it provides no reassurance to the parties that the bargain will be honored. Adherence to vague agreements are difficult to monitor, and so is adherence to n-part tests and totality-of-the-circumstances balancing. If the point of such a bargain is to facilitate cooperation in the advancement of some mutually beneficial goal (e.g., federalism, free speech, racial equality, etc.), then the absence of clear lines and hard edges defeats the purpose of the agreement. Why should I vote for a result that I dislike now for the sake of a principle will melt away when I want it to yield a result that I prefer? As Thomas and Scalia must have been thinking, the doctrine against racial gerrymandering seemed to give constituencies favored by Democrats all the cake (in the 1990s and naughts, when the districts were mostly upheld), while the Republicans are now getting the kale in return.

Third, credible commitment might, therefore, require the loss of doctrinal subtlety to make adherence to the doctrine easier to monitor. It might sound crass to suggest that the point of constitutional principle is to facilitate vote-trading across cases. If constitutional stability requires coalitions that cross ideological lines, however, then adherence to constitutional principles ought to be easy to monitor, so that I can vote for a result I dislike today knowing that I will be repaid with votes of colleagues who dislike the result of tomorrow. Under-theorized agreements that simply resolve the case before the court threaten such stability by threatening such vote-trading. Crisp, hard-edged doctrines that are hard to evade facilitate such deals across time.

In light of these considerations, the “predominant motive” test might need some harder edges, akin to “one person, one vote.” Maybe buried in Breyer’s majority is the hint of one such rule – the idea that a state legislature may not set as a districting goal the maintenance of particular “racial percentages in each majority-minority district, insofar as feasible.” Breyer’s attack on “mechanical racial targets” suggests that five votes – a slender coalition but, with Kennedy, a cross-ideological one – might be declaring such rigid racial benchmarks categorically out of bounds. If so, then the Miller “predominant motive” doctrine has a new island of clarity, albeit still surrounded by the swamp of Miller’s well-nigh incoherent idea that racial considerations can be a but-for cause for the location of a district’s boundaries just so long as it is not “too much” of a cause.

Posted by Rick Hills on March 25, 2015 at 11:31 PM | Permalink


I guess I don't see how "sticking with a principle" requires judges to charitably construe pleadings, or find standing where it may be lacking, in order to issue judgments that instantiate that principle. And I don't think the incoherence of the Shaw/Miller doctrine merits charitable construction on the point of district-specificity. District-specificity is a very clear and well-settled aspect of this otherwise incoherent doctrine, as the Court unanimously recognized and all the parties argued or conceded.

As for Thomas, you have more of a point; why doesn't he concur in the majority's construction of the Ashcroft fix, thereby making Alabama's gerrymander uncompelled? For one thing, it doesn't matter on multiple levels; he joined the lead dissent on procedural grounds so either way he's dissenting, the majority already had its majority anyway, and most importantly, Section 5 is effectively inoperative after Shelby County invalidated the coverage formula. For another, a maximalist reading of the Ashcroft fix, accompanied with this narrative about how the DOJ and ACLU "hijacked" the Voting Rights Act, may serve the anti-racial-gerrymandering principle much better than concurring in an opinion that reads Section 5 to only demand nuanced racial gerrymandering of a sort that he thinks is just as impermissible as the crude kind of racial gerrymandering Alabama engaged in. His opinion puts Section 5 on thinner constitutional ice than the majority's and may induce people in Congress to think about repealing the Ashcroft fix in the event they ever enact a new coverage mechanism. So I think he's being quite faithful to his (exceptionally broad) understanding of the Shaw/Miller line of cases, at the small cost of voting to allow a single racial gerrymander in Alabama on account of Alabama's compliance with a statute that no longer applies to anyone.

Posted by: Asher | Mar 27, 2015 2:25:40 PM

On my reading of Scalia's opinion he did not really reach the merits of plaintiffs claim since he did not think they had properly presented it.

Posted by: Jr | Mar 26, 2015 3:08:26 PM

Rick, do you think that there are a lot of white *Democrats* living in the areas immediately surrounding majority-minority districts in Alabama? I suspect not (indeed, I doubt there are many white Democrats left in Alabama at all). And I suspect that explains precisely why the Republicans in Alabama pulled into the majority-minority districts so many blacks and so few whites -- they weren't pulling *blacks* per se into the under-populated majority-minority districts, but rather pulling in *Democrats* (of whatever race was available) into those districts, so that the surrounding districts would remain more favorable for Republicans. Indeed, in doing so, they were just flipping what the Democrats had previously done, which was under-populate the majority-minority districts so that they could move (black) Democratic voters out into the surrounding districts to make them more competitive for Democrats. In short, this had everything to do with politics, and very little to do with race, which likely explains why the liberals all suddenly fell in love with a Miller claim and the conservatives all suddenly rejected it.

Posted by: Hash | Mar 26, 2015 9:40:16 AM

Brett, I have to agree with Justice Breyer's opinion that "one person, one vote" poses zero obstacle to complying with the VRA. Why did Alabama have to pull only Black people into these safe districts in order to maintain equal district population? The Alabama legislature drew in thousands of Black voters but only thirty-odd white voters into a district to keep that magic 70% black ratio: how is it possible that they could not maintain equal population by simply straining less to insure that new voters drawn into it are all black?

Frankly, it does not pass the straight face test to argue that Reynolds v. Sims is a reason to pack black voters into districts even as voters are becoming less residentially segregated.

Posted by: Rick Hills | Mar 26, 2015 7:38:09 AM

"In light of these considerations, the “predominant motive” test might need some harder edges, akin to “one person, one vote.”"

Somewhat ironic, then, as I read it. It appears to me that the state might get told that they don't have to be so literal about "one person, one vote", and have to relax the equal population criteria.

Posted by: Brett Bellmore | Mar 26, 2015 5:20:09 AM

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