To no one’s surprise the GOP leadership in Texas wasted no time in appealing their loss at the appellate level of their mid-cycle redistricting to SCOTUS. It also shouldn’t surprise us that for a few days at least the appellate decision is stayed. That’s because as (bad) luck would have it the Justice who first gets ’emergency’ petitions like this ‘Sammy the Sleaze’ aka Justice Samuel Alito. Alito claims to worship Christ but the true ‘deity’ he worships is Trump and Trump wants those five House seats the Texas GOP is trying to get him.
For those who don’t know, there are thirteen federal judicial circuits. Yes, there are only nine Justices on SCOTUS (for now) but what matters is that each Justice has at least one Circuit for which they are the primary/initial point of contact when something urgent comes up. That Justice can right then and there say no, or they can refer the matter to the rest of the Court do determine whether the issue should be considered by the whole gang.
In the meantime the Justice (in this case Alito) can either leave the lower court ruling in effect or stay it pending a decision from the full Court on whether to consider the case. As this article from USA Today explains the whole process which includes Texas being able to go ahead and use the new m-mid cycle gerrymandered maps is frozen Alito has given the plaintiffs until 5pm Monday to file a response to Texas’ appeal.
As most of you know it only takes four votes to grant Cert to hear a case, whether via the traditional (before Trump) process or the so-called Shadow Dockett which used to be rarely used. It was for emergencies, things that could wait months, much less a year. Of course these day Trump being butt-hurt about not getting what he wants qualifies an “emergency’ with the current SCOTUS and a stunning amount of law has been rewritten via the shadow docket machinations. Someday history will look back on this era of SCOTUS and Roberts and won’t be kind in its assessment but I digress.
We already know Alito want’s to stay the District Court ruling and the appellate decision that upheld it and let Texas use it’s new maps. Thomas, who’s head is as far up Trump’s ass as Alito’s will certainly go along. Will Roberts allow at least two of the other Justices to vote to grant Cert to do so or will he shut the whole thing down? He’s in an uncomfortable spot of his own making. Sort of like one of Vlad the Impaler’s victims feeling the tip of the pike just touching you know where.
His problem is that the District and Appellate rulings struck down the new Texas maps are based on the fact (and yes that factual basis can be legally established) race was a key factor in redrawing districts – ‘diluting’ black/minority’ votes. Roberts has worked awfully hard during his tenure to stamp out using race to draw voting maps. It’s been a core mission of his to gut the landmark Voting Rights Act and he’s been successful to an appalling degree. Under him SCOTUS has endorsed PARTISAN gerrymandering as ok, beyond SCOTUS’ power to address. However RACIAL gerrymandering simply, in Robert’s mind is one of the worst things ever conceived and must be stamped out.
Here’s where it gets particularly tricky. California as you know matched Texas seat for seat with its own mid-cycle gerrymander. However, Gov. Newsom let the VOTERS decide whether to for 2026, 2028 and 2030 suspend the state’s non-partisan redistricting process. They overwhelmingly approved the new maps drawn to give Democrats an additional five seats, cancelling out what Texas’ LEGISLATURE had done for Trump/the GOP. As expected GOPer’s in California filed a lawsuit of their own. However the focus wasn’t on the temporary suspension of the non-partisan maps drawn under California law but because they say the new maps took RACE into account! Ok, so it was ‘brown’ (Hispanic) people who benefitted but this is the modern GOP. Brown, black, yellow etc. aren’t WHITE so they don’t rate the same as white people do.
This is getting longer than I wanted so please bear with me a bit longer. You can read the linked article for details on case law, the Dec. 8 filing deadline in Texas and the court decision and appeal coming too late, at least as far as the Texas GOP is concerned. What matters is that yes, candidates have been campaigning for the nomination in the maps using the new districts. That alone might give SCOTUS an excuse to intervene. The question would be how as much as how much.
As I noted earlier right now the District and Appellate rulings are stayed and the new maps are in force. Roberts can allow SCOTUS conservatives to grant cert but that doesn’t mean they have to hear arguments/read briefs and make a quick decision. They can simply allow the temporary stay to extend until they reach a decision no matter how long it takes! To put it plainly SCOTUS can go for quite a while saying little, and more importantly doing even less and Tex-ASS GOPers would get to use their new maps. That would be blatant and ugly but while sometimes they’ve said no most of the time SCOTUS has done whatever Trump had ordered them to do. I for one believe Roberts knows his legacy will be very different (in a bad way for him) than he’d dreamed of.
However he’s got another problem. That California case. Even if the GOP plaintiffs don’t get things their way in district court they will appeal. Now, the Ninth Circuit is fairly solidly still progressive despite so much GOP effort to water that down. They could write a quick ruling that gives the GOP plaintiffs a reason to make their own ’emergency’ appeal to SCOTUS. I don’t know which Justice currently oversees the Ninth Circuit but if they pass the matter along to the full Court what then?
Those weekly conferences where Justices discuss cases, which ones to hear or reject, what side makes what important points in their respective arguments everyone should take into account, vote on who wins and loses and all that are famously opaque. There isn’t a government or intelligence service in the world as good at preventing leaks as SCOTUS has been, especially when it comes to who said what in those weekly conferences when they all sit down with it just being them – no clerks or court reporters.
It’s a murky argument in California as to whether race was a significant factor in drawing the new maps. Like Texas they have as high or even higher percentage of Hispanic voters as one can find in this country. However in the Texas case that race was taken into account in the redrawing of four of the five new districts is in the record. There’s no way in hell Roberts wants this case being debated, especially publicly. By gutting the Voting Rights Act and saying race couldn’t be used to draw maps even though white majorities (GOP ones mind you) could eliminate the ability of non-whites to elect non-white people he’s now faced with fellow GOPers openly asking to let race be a factor after all!
I do have some hope however. Not a lot but not some faint ‘hope against hope’ type hope. Roberts has allowed SCOTUS to be subservient to Trump for a while now, and we damn well know its been out of fear. The legacy Roberts had dreamed of would have happened only if he’d been allowed to spend at least three decades mostly reshaping the law a little bit at a time. FEAR (of Trump) led him to abandon that approach. Given how quickly Trump’s approval on every major issue has tanked AND the Epstein mess Roberts might rethink always bending over and taking it up the hoo-ha from Trump.
He will never have the legacy he dreamed of. However he’s young enough that by starting to lead some real SCOTUS resistance to Trump, to actually make a tangible effort to again follow the words ‘Equal Justice Under Law’ inscribed above the entrance to the building he might avoid being reviled by history. And mocked in law classrooms.
I expect we’ll know before the week is over whether SCOTUS will decide to hear Texas’ appeal and more importantly if they do whether they will leave the newly gerrymandered maps in place. Stay tuned.
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