#SCOTUS Agrees to Hear Another Redistricting Case Next Term, This One with Lower (Or at Least More Obscure) Stakes

This morning, the Supreme Court agreed to hear Shapiro v. Mack, a redistricting case raising a procedural point: “Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

Unlike the Court’s recent decision to hear the Evenwel one person, one vote case, which garnered considerable press coverage (my thoughts at Slate), this case is less high stakes and less controversial.  But it still has its own importance.  Here’s why.

Almost all cases come up to the Court on a cert. petition, and a decision not to hear a case up on cert. (the fate of the vast, vast majority of cert. petitions) has no precedential value. That is, you can’t read into a Court decision to deny a cert. petition anything about if the Supreme Court agrees with the lower court ruling it refused to hear.

But a small minority of cases, most importantly in the area of redistricting and campaign finance, come directly on appeal from a 3-judge district court to the Supreme Court.  Unlike a cert. denial, the Court’s decision not to hear a case up on appeal means the lower court did get the result right (though not necessarily for the right reasons).  It seems pretty clear both from my look at older Supreme Court cases and from comments Justices have made at oral argument in 3-judge court cases, that courts feel more pressure to give full hearings to cases up on appeal, because the Justices are worried about essentially signing off on lower court opinion results without a full hearing.  So litigants really want to get their cases heard before three-judge courts if they can, because it greatly increases the odds the Court will hear the case.  (That’s part of why Evenwel may have been heard—the Court had denied cert. on cases raising the same issue in the past, but Evenwel was an appeal, not a cert. petition.)  The Shapiro case concerns the question when a district court asked to put together a 3-judge court (this one to review Maryland redistricting) can decide the issue is insubstantial and does not deserve a three-judge court.

As I explained here on the importance of cases coming up on appeal, in my 2003 book, The Supreme Court and Election Law, I discuss the fate of the famous case of Harper v. Virginia State Board of Elections, which started out as a summary affirmance in favor of the constitutionality of the poll tax, accompanied by a bitter dissent from Justice Goldberg.  Justice Black did not like what he saw in that dissent, and agreed to a full hearing.  This delayed a decision a long time.  Long story short, he got burned as three Justices changed their minds when the Court heard the case, leading to an opinion striking down the poll tax and a dissent by Justice Black.  (My book reprints the draft Goldberg dissent in an appendix.)

For more background on the role of the three-judge court in election litigation, I highly recommend the work of Michael Solimine, including his most recent piece on the topic. Josh Douglas also has an excellent piece.


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