As Adam Liptak and others have reported, much of the questioning at oral argument in this important case focused on whether it was premature for the Supreme Court to be hearing the case now. More specifically, it was the “liberal wing” of the Court that focused so heavily on this issue. Indeed, the questions Justices Ginsburg, Breyer, Sotomayor, and Kagan asked to those defending Texas’ maps — the state of Texas and the United States – were overwhelmingly about whether the Supreme Court appeal was premature.
What’s odd about this, which I haven’t seen noticed elsewhere, is that this is a battle the liberal wing of the Court seems to have lost already. On Sept. 12, 2017, the Court in a 5-4 vote granted a stay of “the order” of the three-judge court. All the same arguments were made then that are being made now about whether it is legally premature for the Court to be able to act in this case at all at this stage. But by issuing a stay, the Court majority would seem to have resolved that issue. The Supreme Court decided that the lower court proceedings had reached a stage at which Supreme Court action was legally appropriate.
To put the technical legal issue in a nutshell, the argument back in September, and again now, is that the lower court at this stage has only ruled on liability: all it has done is hold that certain Texas congressional and state districts violated either the Constitution or the VRA. But the lower court has not yet issued any injunction against the defendants. Nor has the lower court issued any kind of remedial orders concerning new maps. Despite that, Texas has been arguing that “the practical effect” of the lower court’s actions is tantamount to the court having issued an injunction.
When the Supreme Court issued a stay, it seemingly accepted this position. After all, the Court does not “stay” opinions. It stays actions of a lower court, such as the issuance or denial of an injunction. The language in the Court’s September order is that the Court was staying “the order” of the lower court. So the Supreme Court, 5-4, has already concluded, it would seem, that the lower court’s actions did include issuing “an order” that has the “practical effect” of making the actions below more than just a liability ruling – in other words, there was jurisdiction to issue the stay, which implies fairly directly that jurisdiction exists to review the substance of the actions that the Court has stayed.
Understandably enough, the first lawyer up to argue for the challengers seemed quite surprised that the Court – really, Justices Ginsburg, Breyer, Sotomayor, and Kagan – focused so much of their time on the jurisdictional issue. Here’s how Mr. Hicks began:
HICKS: Mr. Chief Justice, and may it please the Court:
I hadn’t anticipated doing this, but I’m going to start with the jurisdictional question, which, of course, is what you all start with.
Justice Breyer asked a key question, I think, of — of — of the other side in this.
He said, show me the language. Show me where they entered an injunction.
That’s the same question Justice Breyer presumably had in September, but he was on the losing side of the 5-4 vote then.
The question thus arises: why did the liberal Justices spend so much time pursuing a battle it would seem has already been lost?
Moreover, winning this battle at this point — which means having at least one Justice who supported a stay turn around and conclude that the Court does not have jurisdiction over the case at this stage of the proceedings (and hence never had jurisdiction) — would be institutionally awkward. When the Court issued the stay, it brought the entire judicial process below to a halt, which is where it has remained for eight months thus far. The lower court has not been able to do anything about potential new maps. For the Court now to say we don’t have jurisdiction after all is to say that the Court introduced a lengthy delay, for no legitimate reason, into creating valid election districts for Texas.
I’m not addressing whether the Court was right or wrong back in September to conclude that, in practical effect, the lower court had issued an “order” and hence the case was properly before the Court. Given the stay, though, it does seem puzzling or at least curious that the liberal side of the Court continued to devote so much of its attention to re-fighting this battle.
We can speculate about why they might have done so, but I’m not looking to do that here. My aim is simply to call attention to this odd aspect to the argument – one that meant there was much less discussion of the actual VRA and constitutional issues concerning the design of election districts in Texas. And if the stay means that the Court has already decided it’s going to reach the merits of those issues, it’s all the more disappointing that comparatively little argument time was devoted to them.