Justice Kavanaugh’s Analysis of Why It Was Appropriate to Issue a Stay in Alabama Redistricting Case Makes No Sense (as Steve Vladeck Persuasively Argues)

This point from Steve Vladeck seems indisputably right (and Justice Kavanaugh indisputably wrong):

…Kavanaugh also attempted to suggest that Alabama would be entitled to stays of the lower-court rulings even under the court’s ordinary three-part standard. In a footnote, he wrote that “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, for that matter.” This sentence gives up the game. If both sides are equally likely to prevail on the merits — if it’s a 50-50 case — then the only justification for a stay would be if every other factor decisively favored Alabama. And yet, not only did Kavanaugh have nothing to say about the other considerations, but there are compelling arguments that they, too, would favor leaving the district court rulings intact. Alabama still has plenty of time to adopt district maps that don’t violate the Voting Rights Act (so any harm is not irreparable), and presumably it is in the public interest (and especially the interest of Alabama’s 1.3 million Black residents) to have representation that does not unlawfully dilute the power of Black voters.

My emphasis. So what’s really going on here? Steve explains: “In other words, Roberts voted against staying the lower-court rulings because they were correct under the law as it exists today, even if he’s perfectly willing to change those laws tomorrow. Against that backdrop, it becomes clear why the ultraconservative majority came out the other way — not because the Justices disagree with Chief Justice Roberts that the district courts were right, but because they are willing to change the law today.”

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