It was somewhat of a surprise in September 2017 when the Supreme Court on a 5-4 vote blocked a three judge-court hearing an interminable Texas redistricting case from imposing final maps. The surprise came because the Court had not yet ordered new maps; it had only ordered the governor to state within 3 days whether he’d call a special section to come up with a remedy to solve the Voting Rights Act and constitutional violations found by the three-judge court. The Supreme Court in January agreed to hear the appeal, postponing the jurisdictional question.
At today’s oral argument, the jurisdictional issue was front and center, with the liberal Justices contending there was no appealable order yet and the conservatives pushing back. The jurisdictional question was front and center, and the key exchange appeared to be this one between Justice Kennedy (who said surprisingly little at this argument) and Renea Hicks, lawyer for some of the challengers:
JUSTICE KENNEDY: Could — could Texas have — have used the current maps for the 2018 elections?
MR. HICKS: Yes, in the absence - unfortunately, as far as we’re concerned, but yes, in the absence of -
JUSTICE KENNEDY: I mean insofar as the court’s order was concerned.
MR. HICKS: Yes. I don’t think there’s any question about it. If — if they say we would have been held in contempt if we had gone forward, it would have been impossible to hold them in contempt because the court itself said: We have not enjoined use of the plan for any — for the upcoming elections. So
CHIEF JUSTICE ROBERTS: Well, but the judge — the court gave the — the governor three days -
JUSTICE BREYER: Three days.
CHIEF JUSTICE ROBERTS: — to call the election. And, I mean, if you were the governor, would you think, well, maybe we’re not going to be able to use the 2018 plans?
MR. HICKS: No, I would not at all. First of all, that three-day window was a — a chance for the — the legislature — the governor to come back and say, I will call the legislature in special session. It wasn’t about when he would call them into session.
It is not clear if Justice Kennedy bought this argument, or the liberal Justices’ claim that if the lower court order counts as an injunction, there will be many more appeals coming to the Court. But it would provide a way for the Court to duck this case, at least for a while longer, in a Supreme Court term where there’s a heck of a lot going on and potential tumult at the Court behind the scenes.
If the Court kicks the case, the parties will fight over whether to put new maps in place for 2018, which the district court almost certainly won’t do given how the 2018 primary season is already underway. The district court will then impose a final remedy, and there will be another appeal to SCOTUS, over the maps to use in 2020 (making this a case that may take the entire 10 year redistricting period to resolve).
If the Court does reach the merits, it does seem that the Court is divided along party/ideological lines, with the conservatives believing there was no evidence that Texas acted with racially discriminatory intent in passing the 2013 map (with less clarity from oral argument as to how the Court would resolve various VRA and racial gerrymandering challenges to particular districts).
So a dismissal of the case for lack of jurisdiction is a real possibility in this case, which raises this question:
Why did the Court take it in the first place, and not wait for the district court to finish its long and unpleasant job?