The Week of May 22, 2017 at the Court

On Monday, the Supreme Court issued three opinions and its Order List from last week’s Conference. The most newsworthy of the decided cases, Cooper v. Harris, involved a challenge to two congressional districts in North Carolina. The plaintiffs  alleged that the districts were an unconstitutional racial gerrymander. The three-judge district court agreed, and the case was appealed automatically to the Supreme Court, which affirmed, striking down the districts. (If this sounds familiar, it may be because earlier this Term, the Court unanimously vacated a decision by a district court to uphold parts of a Virginia state legislative map that was challenged as an unconstitutional racial gerrymander, in a case called Bethune-Hill v. Virginia Board of Elections. The two cases were argued on the same day, by the same lawyers.)

In Cooper, in an opinion by Justice Kagan, the Court unanimously (8-0) rejected the state’s claim that, to comply with the Voting Rights Act, it needed to increase the black voting age population in one of the two districts. And by a 5-3 vote, the Court upheld the district court’s factual findings, with respect to the second district, that race predominated over other, constitutionally neutral, districting criteria. Many people were surprised by the line-up in Cooper. In Cooper, the 5-3 part of Justice Kagan’s opinion was joined by the other three liberal justices (Breyer, Ginsburg, and Sotomayor), but the fifth vote was supplied by Justice Thomas. But as I tweeted on the morning that Cooper came down and Mark Joseph Stern explained in more detail in Slate, Justice Thomas’s vote should not be a surprise. As he explained in detail in his partial concurrence and partial dissent in Bethune-Hill and reiterated in his concurrence in Cooper, he believes that the conscious use of race in government decisionmaking should be subject to the strictest of scrutiny – and it is this hostility to the use of race in decisionmaking that has made him hostile to the way the Voting Rights Act is interpreted and applied (see his dissent in Alabama Legislative Black Caucus v. Alabama for some discussion of this point). In other words, Justice Thomas’s views about the law across these cases are fairly consistent, even if they do not map onto a traditional liberal-conservative understanding.

As prolific election law blogger and scholar Rick Hasen suggests, however, the bigger surprise may be that Justice Kennedy, who authored the opinion for the Court in Bethune-Hill, joined Justice Alito’s partial dissent here. Hasen speculates persuasively that Kennedy was uncomfortable with the majority’s handling of an earlier precedent requiring racial gerrymandering plaintiffs to produce an alternative map that meets the state’s legitimate criteria; the Cooper majority reads that requirement as simply setting out one way, but not the only way, for plaintiffs to prove that race predominated. Justice Alito’s partial dissent vehemently disagrees with that reading.

Cooper is very important, although just how important is in dispute. Some, like Hasen, think that these cases may make it harder for racial gerrymanders to be defended as partisan gerrymandering, at least in the South where race and party affiliation are very highly correlated, thus giving voting rights advocates more ammunition. Others, like equally prominent scholar Richard Pildes, argue that Cooper involves only a fact-specific disagreement about application of well-established legal propositions. There is no question, however, that Cooper, along with Bethune-Hill, will be pored over by legislators, and courts alike. Indeed, SCOTUSblog is sponsoring a symposium to discuss these cases.

The Court made other election-related news yesterday when it declined to hear full argument in Republican Party of Louisiana v. Federal Election Commision, instead simply summarily affirming. (There are a small number of cases, like this one and the voting cases just discussed, in which there is a three-judge district court and an appeal as of right. The Court can summarily affirm or, at least theoretically, summarily reverse, or it can set the case for argument and consider it on the merits. The precedential value of a summary affirmance is weaker than merits consideration because it does not contain any reasoning or approval of the lower court’s reasoning; it only affirms the bottom line.) Republican Party of Louisiana involves an unsuccessful challenge to the McCain-Feingold campaign finance law’s regulation of certain donations, known as “soft money,” to state and local parties. This summary affirmance was particularly notable, however, because Justices Thomas and Gorsuch indicated that they would have set the case for oral argument and a full merits decision. Kate Ackley of Roll Call rounds up reaction to the Court’s action and to Thomas and Gorsuch’s disagreement with it.

The Court also issued opinions in two other cases on Monday. First in an 8-0 opinion by Justice Alito, it held in Water Splash, Inc. v. Menon that under an international treaty known as the Hague Service Convention, international service of process by mail is permissible. And in an 8-0 opinion by Justice Thomas in TC Heartland LLC v. Kraft Food Group Brands LLC, the Court limited the places where patent suits can be brought by interpreting the statute to mean that a defendant’s “residence” is its place of incorporation only. This ruling limits a patent infringement plaintiff’s ability to forum shop, and will particularly affect the district in Texas where 40% of patent suits are filed due to a perception about friendly judges and juries, Reuters explains. In the same article, IIT Chicago-Kent law professor Greg Reilly points out that as a result, fewer cases are likely to be filed at all, which would be “a positive step for those who think there is a problem of a lot of poor-quality patents being enforced.” Adam Liptak for the New York Times explains that the decision is a blow to “patent trolls,” companies or individuals who buy patents for the sole purpose of “demand[ing] royalties or sue[ing] for damages.”

Finally, this paragraph from last week’s post remains true today:

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The Court will hold Conference on Thursday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when it does.

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