Throwing Shade At The Shadow Docket In The Alabama Redistricting Cases

A three-judge Eleventh Circuit panel issued an injunction on January 24, 2022 to stop Alabama from changing its electoral map. This court ruled that Alabama should have established a second district with majority-minority residents. Alabama appealed this ruling to Supreme Court. They sought a stay from the injunction. The Supreme Court published an indictment on Monday. Merrill v. MilliganAnd Merrill v. Caster. This was a petition to revoke the stay. That petition was granted by Court. The Court also lifted the injunction until it resolved the appeal. The Court is likely to set the case for argument at the next term.

The Court split 5-4. Justice Thomas joined Justices Alito Gorsuch and Kavanaugh in supporting the Court’s order. Chief Justice Roberts opposed the grant to the stay application. He did however agree to grant certiorari prior to judgment and that the case would be presented for argument next term. Justice Kagan was joined by Justices Breyer, Sotomayor and dissented. They could not grant the stay or have granted certiorari. Justice Kavanaugh, Justice Alito and Justice Kavanaugh drafted a concurring statement that responded to Justice Kagan’s dissent. Other members of the majority didn’t explain their reasoning.

This case is the most significant shadow docket entry after John Does 1-3 and Mills. Justices Barrett & Kavanaugh explained in the vaccine mandate case why they would not grant injunctions to unargued cases. I was writing at that time that Barrett and Kavanaugh had struck a deal on the shadow docket. Kavanaugh, but Barrett declined to grant a stay in an capital case. However, in the Alabama Barrett allowed a stay without explanation in some cases. What can we do to reconcile all these votes? Barrett would prefer to keep the status quo, I believe. Or to put it another way, Barrett doesn’t want emergency relief from the Court that could alter the status-quo. The District Court in the case of the vaccine mandate did not issue an order, and the mandate will continue to be implemented. The district court issued a stay of execution in the capital case. This meant that there would be no execution. The district court granted a stay of execution in capital case. Alabama In these cases, the court ordered that the state draw new maps. The district court granted a stay to preserve the existing maps. They would remain in force until the 2022 election.

Justice Kagan was still dissenting against Justice Barrett.

Alabama’s position requires that we decide whether to accept it. Consideration should be taken seriously and continued—the kind of consideration impossible to give “on a short fuse without benefit of full briefing and oral argument.” Is it v. Mills, 595 U. S. ___, ___ (2021) (slip op., at 1) (BARRETTJ., concurring with denial of injunctive relief application

Barrett wasn’t persuaded.

But what of Justice Kavanaugh. It is clear that Justice Kavanaugh seems annoyed by the endless harping on about the shadow docket. The same here. Kavanaugh casts doubt on Kagan’s shadow docket lamentation

The catchy and tired rhetoric of the principal dissent regarding “shadow docket”, is also off-target.

Barrett is not a part of Kavanaugh’s concurring order, but it provides some guidance as to when he might grant emergency relief in elections cases.

Kavanaugh repeatedly reiterates that a stay will not solve the case. A stay, on the other hand, maintains the status-quo and the Court decides how to resolve the case.

The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do It is not must decide on merits of the emergency docket. Reiterating: A Court stay order does not constitute a decision regarding the merits.

For the 2022 general election and primaries, it is certain that the existing maps will still be valid. However, after 2022, the maps will be changed in principle.

Kavanaugh explained that election cases do not require the application of the classic four-factor test used to obtain certiorari in advance of a judgment. Rather, Purcell governs:

However, the Court often stated that the traditional test is not sufficient to grant a not applicable (at minimum not in the same fashion)Used in elections cases where a lower court issued an injunction to a state election law during the election period. Please refer to Purcell, 549 U. S. 1. This Court has stated repeatedly that federal courts shouldn’t ordinarily stop a state from enforcing its election laws within the closing hours of an election. The Court, in turn has frequently overturned lower federal court injunctions which violated this principle. 

Kavanaugh third would expand the PurcellPrimary elections will be held in principle at this point. While we’re still quite far off the November general election, primaries can be voted for earlier.

The District Court’s order would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.

Kavanaugh’s “few week” count is something I don’t know. The primaries begin on March 30, which is six weeks away and over two months after the District Court’s decision. Remember Justice Kavanaugh’s statement that the CDC eviction moratorium would end “in a few days”? The calendar still had 31 days. In the Kavanaugh chambers, times move funny

Justice Kagan provided this strong sentence on the subject of timing:

Alabama can’t continue violating Black Alabamians’ voting rights simply because a court order came down within the first month. 

I thought immediately of McConnell’s rule–Justice Scalia passed away in the third month of an electoral year. However, it was close enough. Justice Kagan might have thought the same thing.

Kavanaugh also provides guidance in the footnote on how to choose when PurcellIt starts now:

The nature of the law governing the election and the ease with which the State can make changes without incurring collateral consequences may determine how close an election is. Complex or disruptive changes must be approved sooner than those that can be implemented quickly.  

Kavanaugh fifth provides a framework for explaining how Plaintiffs could rebut it Purcell presumption:

It would be my opinion that Purcell A plaintiff can establish that some principle is possible even in the face of an injunction being issued just before an election.

Each of the four components must be fulfilled. All four of these elements need to be satisfied. PurcellPresumption is very difficult to disprove.

Sixth. Kavanaugh acknowledges that the District Court did an excellent job, but it is not enough. Conscientious decisions cannot be protected from appeals review.

However, the principal dissenter disagrees with this opinion and emphasizes its thoroughness. If the District Court had given sufficient consideration to allow an appeal court to refuse a stay request, appellate courts can usually terminate the stay inquiry there. This is how stay analysis does not work. Contrary the assertion of the dissent, this is not how stay analysis works. The fact that the District Court issued such a long opinion, after having reviewed a substantial record, is our starting point and not the end point for our analysis on whether to grant a temporary stay. 

This fact is important. The Supreme Court often gives a great deal of weight to the factual findings made by the District Court in many cases. In this instance, Whole Woman’s Health and HellerstedtJustice Breyer spent pages recounting District Court’s findings. These findings were the foundation for the Constitutional ruling. Justice Kavanaugh may be signaling now that while the efforts of the lower courts are appreciated, they do not constitute the “starting point” According to the old saying, Ok, let’s move on,

We don’t speak about Nino.

Kavanaugh adds an interesting aside to his assertion that Kagan’s rhetoric was misunderstood.

Contrary to what the dissent claims, I do not take a position on the final mer-its of each party’s underlying legal dispute. I will not make any position until the Court has received all briefings, hears oral argument and conducts our normal activities. extensive internal deliberations.

It’s not possible to recall an opinion in which a Justice refers “internal discussions.” Not just internal deliberations, but all of them.Extensive international deliberations.” Kavanaugh: What’s the point? After the case has been argued, Justices will meet at conference to discuss it, give a majority opinion and, if needed, issue a dissension. We all know, however that conference deliberations don’t end at the conclusion. There are revisions and sometimes votes that flip. Are you referring, Kavanaugh? Or is it the tedious, slow process of forming and reforming a majority?  What is the significance of this passage? Was Kavanaugh really saying this? He is willing to be persuaded by Justice Kagan on this matter after extensive internal discussions. In fact, he suggests that he’s open to argument on the merits.

Even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—As do the plaintiffs, This is the right thing to do.  

Maybe I’m a little too lenient with the three words that I use, but this thought came to mind after a thorough concurrence.

Jusqu’à the next term.