Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

I. First, the doctrinal backstory: Since at least the 2010 census, Republican state legislators in the South have been zealously "packing" black voters into districts with ever-larger black majorities in order to minimize Democrats' political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible "predominant factor" test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, "strict-in-theory, rational-basis-in-fact" sort of color-blindness?

As I noted in an earlier post, Alabama Legislative Black Caucus v. Alabama suggested that a great ideological switcheroo was about to take place. ALBC gave rise to a 4-vote dissent from SCOTUS's conservatives and a 5-vote majority (liberals plus Kennedy) remanding for a harder look at apparently baloney Voting Rights Act justifications for packing black voters into super-majority districts. One did not have to be a diehard Legal Realist to suspect that both sides were suspicious that the other was tailoring its principles for partisan reasons.

II. What is the doctrine of race-based districting after Cooper and Bethune-Hill?

I will spare you the doctrinal convolutions of these lengthy opinions. They are tedious, inside-baseball stuff, fit for an election law blog rather than a generalist forum like this one. (For handy summaries, see my colleague Rick Pildes' post over at Scotusblog. Pildes was counsel for ALBC, so he knows what he is talking about). Here are the simple take-away points, as I understand them:

A. Bethune-Hill's bottom line: Just because a district's boundaries can be explained with "traditional districting factors" does not mean that race did not predominate, if the legislature actually was motivated predominantly by race. A district does not have to look really weird in order to be predominantly motivated by racial purposes: Cleverly disguised use of race is still use of race. It is the ("predominantly") racial purpose, not the race-neutral appearance, that matters. In particular, explaining each jiggle and turn of a district boundary with some conveniently race-neutral story about county lines, incumbent protection, and so forth cannot exonerate a plan that is revealed by "smoking gun" intent evidence to be designed to maintain a minimum percentage of black voters in safe districts.

B. Cooper's two bottom lines:

1) State legislators do not have carte blanche to create black-majority districts to deal with racial bloc voting that allegedly violates the VRA, unless those legislators actually show a likely violation of the VRA absent te packing of black voters. In particular, the legislators have to show that there really are not enough cross-over white voters to break the alleged white bloc. VRA compliance must be proven, not assumed, as a justification for "predominantly" race-based districting.

2) Plaintiffs challenging a district as race-based do not need to produce a race-neutral districting map that accomplishes the State's proffered race-neutral goals as well as the State's map. Contrary to one (apparently erroneous reading of) Easley v. Cromartie II, such proof of a predominantly racial motive is not essential, because "direct evidence" of racial purpose -- for instance, "scores of leaked emails from state officials instructing their map-maker to pack as many black voters as possible into adistrict, or telling him to make sure its BVAP hit 75%" -- could also supply the needed proof.

II. Were these decisions rooted in political party or constitutional doctrine?

One might be just a wee bit suspicious of the line-up in Cooper, especially when one contrasts it with the line-up in Cromartie II. All of the Cromartie II liberals read Cromartie II narrowly to allow proof of racially discriminatory purpose even without the plaintiffs' producing a race-neutral map accomplishing the State's race-neutral goals. Alito, joined by Roberts and Kennedy, wrote a dissent from the holding described at I(B)(2) above, calling for a broader reading of Cromartie II. But back in 2001, Kennedy joined the conservatives in Cromartie II in dissenting from Breyer's very deferential attitude towards race-based districts. Now Kennedy is joining a dissent that declares "[a] precedent...should not be treated like a disposable household item—say, a paper plate or napkin -- to be used once and then tossed in the trash."

Has Kennedy suddenly been converted to a deep love for stare decisis, a love so deep that he is willing to give a broad reading to a mushy precedent that he had earlier decried? Or did Kennedy join Alito's dissent because Kennedy regarded Kagan's majority opinion as a cynically opportunistic and partisan defense of the color-blind constitution, a defense that was rejected by liberal justices in '01 when it got in the way of black politicians' districting demands but currently being deployed by some of the same liberals to get rid of Republicans' districting plans now that black Democrats can win without packing black voters?

Well, let's let Alito's dissent speak for itself. Accusing the majority of "execut[ing] a stunning about-face" on Cromartie II, Alito wrote that, by easing the proof of race-based districting, “the federal courts will be transformed into weapons of political warfare," because, "[i]f the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim,” claims that "can exact a heavy price by using the judicial process to engage in political trench warfare for years on end.”

It is difficult for me not to read this passage as anything but an accusation that the Cooper majority has relaxed Cromartie II's proof requirements because now the majority sees that racial gerrymandering benefits Republicans ("the majority party") and hurts Democrats ("the minority party"). Of course, Alito is expressly speaking of litigators, not his brethren on SCOTUS. But if the shoe fits...

So is such an accusation accurate? The question is difficult to answer, because Cromartie II is a convoluted, fact-specific mess. One can easily pull language out the opinion to favor either the majority's or dissent's reading of how a "predominantly racial" purpose is proven. Indeed, it is quite possible for such mushy, fact-specific precedents to follow a partisan path even if each justice sincerely votes for completely non-partisan reasons, because, as Justice Scalia caustically noted in his Morrison v. Olson dissent, with the "ad hoc approach to constitutional adjudication,... the law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be." Of course, what a liberal majority in 2001 thinks the law "ought to be" might be quite different than what a similar liberal majority in 2017 thinks -- and Cromartie II obligingly provides a big tent for both views.

Mushy precedents like Cromartie II, in short, naturally invite the accusation that the law is (as Alito put it) a "weapon of political warfare." It is not just Cromartie II that invites such suspicion. The same opportunity to tailor the principle to the current majority's current unspoken preferences is present in (for instance) Fischer's analysis of affirmative action or Morrison's of separation of powers.

III. Was Cooper really a "partisan" decision"?

I am inclined to think, however, that Kagan's Cooper opinion is as non-partisan as one could reasonably expect in this fraught area of the law. My key piece of evidence is that Thomas signed on to the majority opinion, adding a separate concurring opinion to note that, whatever the majority might say, the Cooper majority effectively confined Cromartie II "to its particular facts." Cooper, in short, is a general blow against the deferential attitude towards race-based districts exhibited by Cromartie II. By walking back Cromartie II, Cooper gives plaintiffs new tools to challenge the gratuitous creation of black safe districts even when they are not being created by Republicans or being challenged by Democrats. I assume that these tools are precisely why Thomas signed on: Cooper's language will provide reasonably durable speed bumps when Democratic state legislatures of the future want once more (for whatever reason) to draw district lines on racial grounds.

So kudos to Thomas for sticking to his color-blind guns. Whether you love or hate his doctrine, you cannot help but admire the man for rejecting the temptation of abandoning his principles for short-term partisan advantage.