“The Limits of Procedure: Litigating Voting Rights in the Face of a Hostile Supreme Court”

Carolyn Shapiro has posted this draft on SSRN (Ohio State Law Journal Online). Here is the abstract:

This essay is a response to Charquia Wright’s article, Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters, 81 Ohio St. L.J. 405 (2020). Professor Wright tells a story that is disturbing for two separate reasons. First, focusing on a 2016 Sixth Circuit case, Professor Wright demonstrates how a circuit court can circumvent certain types of Supreme Court precedent. More specifically, she documents how the “law of the circuit,” or the binding nature of circuit precedent can prevent a circuit court from reversing its own precedent that is in tension with, or even contradicted by, a Supreme Court opinion. Second, she documents the way that such an errant court can functionally abrogate legal protections for politically unpopular groups and minorities. 

This essay addresses both of those concerns. First, it focuses on some of the ways in which litigation strategy and procedural rules contribute to the stickiness of erroneous case law by deterring or preventing parties from arguing forcefully that circuit precedent is inconsistent with Supreme Court precedent. And it evaluates whether the Supreme Court itself could use tools like its emergency docket to supervise such rulings of lower courts.

Unfortunately, however, the Supreme Court has shown itself to be increasingly hostile to those rights. As the second part of the essay demonstrates, the Court is increasingly ruling against those seeking to enforce voting rights and to keep the doors of the federal courts open to civil rights plaintiffs. Moreover, it is using its emergency docket (as well as its plenary cases) not to supervise lower courts that fail to apply its pro-civil rights precedents, but to limit or eliminate the scope of those precedents. 

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