No, Justice Breyer Won’t Help Elect Donald Trump with a “Courtesy” Fifth Vote for Stay in NC Case

Ian Millhiser makes the case:

On its surface, Gloucester County School Board v. G.G. has very little to do with voting rights. It’s a case about the right of transgender students to use a bathroom that aligns with their gender identity, wrapped up in an equally important question of whether conservatives will succeed in weakening the executive branch’s power to shape policy during an age of congressional dysfunction.

But Justice Stephen Breyer, a Clinton appointee who normally votes with the Court’s liberal bloc, cast a strange and unexpected vote in the G.G. case. Though the immediate impact of that vote is likely to be temporary, Breyer’s decision to cast this one vote raises serious questions about how the Court will behave in the lead-up to the 2016 election.

Court watchers had largely assumed that a raft of lower court victories by voting rights advocates were safe from the Supreme Court now that conservatives no longer enjoy a majority on that Court. Breyer’s vote casts doubt upon that assumption. And, if Breyer behaves in voting rights cases in the same way that he did in the G.G. case, he could throw close elections to the Republicans this November

One reason the voting cases are different is discussed a bit in Ian’s piece: irreparable injury.

Consider the one case most likely to get to the Supreme Court on an emergency basis and which could matter in the fall election: the North Carolina voting rule. I fully expect North Carolina to seek emergency relief from the Supreme Court  (they’ve indicated they are seeking cert.). Justice Breyer is very likely to be with the other liberals on the merits, and he would know that a courtesy fifth, which would restore strict North Carolina voting rules, would do irreparable injury. There’s no way to redo the election. The damage would be done, and it cannot be fixed with a future ruling. With irreparable injury like this, there’s no way Justice Breyer goes along.

Second reason the voting cases are different: cert. is unlikely.

Who would vote to hear the North Carolina case on the merits. Not the Court’s liberals, who likely think the result is right. And not the Court’s conservatives, who at best can expect a 4-4 tie leading to affirmance of the lower court, and at worst, with a Garland appointment (or other Democratic appointment) 5 votes to affirm the 4th Circuit. Why take that chance and take a bad decision in their view and make it national.

So I’m predicting the stay will be denied, with Thomas and Alito perhaps publicly dissenting, followed by an eventual cert. denial, unless there’s a realistic chance of a Republican-appointment to SCOTUS.

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