Kavanaugh, Barrett Question Attorneys On Political Considerations In Racial Gerrymandering Case

4 days ago

At today's Supreme Court hearing for oral arguments in Louisiana v. Callais, Justice Brett Kavanaugh and Justice Amy Coney Barrett questioned lawyers on racial gerrymandering in Louisiana.

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00:00What's the limit on that in terms of your answer to Justice Sotomayor, 50%, 40%, 30%

00:09and what kind of guidance do you think we could give because one of the legitimate concerns

00:17of your brief and the amicus briefs are to give clearer guidance.

00:22What do you think the limit is on taking the political considerations into account in fashioning

00:28a remedial district that substantially addresses the violation?

00:34Well I think one of the limits, Justice Kavanaugh, is numerical, right?

00:37I mean in Shaw 2 the court said that a 20% overlap was insufficient.

00:41In LULAC, you know, less than 50% was insufficient.

00:44Here we're in the neighborhood of 70% so I think as a numerical matter that's going to

00:48be one pretty clear guidepost for the lower courts on how closely a state is approximating

00:55the illustrative map.

00:56And I think the other thing is just to really assess why the state deviated from the baseline

01:01map.

01:02And I think that's one of the things where I don't know that there's any dispute in this

01:05case on both sides why we didn't adopt SB 4, we adopted SB 8.

01:10The sole reason in Senator Womack's own statements is SB 8 was the only map that would protect

01:15our high profile incumbents.

01:17So the rule I think you want is political considerations are fine to take into account

01:21in doing the map, the second map in 50s, kind of a floor on that.

01:29I think so.

01:30I mean this court has never spelled out what substantially addresses means as a numerical

01:34matter and to my mind if I'm between 60 and 80% I think that's substantial but obviously

01:39a judgment call for this court.

01:42Ms. Stewart?

01:43I just want to be sure I understand your question to Justice Alito.

01:46Justice Alito asked you, you know, if the Robinson decision was patently wrong could

01:50it still be a good reason?

01:52And you said, well, you know, if it was patently wrong, no, but we were obeying the federal

01:58court orders, this wasn't patently wrong.

02:00What is the point at which, because it's an odd situation, right, where the later district

02:03court has to essentially take as preclusive the earlier district court's determination

02:08of the Section 2 violation, right?

02:10But it's not entirely preclusive because you left room for the later court to say well

02:16that was patently wrong so we're not going to follow it.

02:19What is the line?

02:21I think there are two ways in which it's not automatically preclusive, Justice Barrett.

02:23I think the first is regardless of what the earlier court decisions say when the state

02:28acts, it has to substantially address the baseline violation.

02:32So that's one way in which if we fail to do that, if we adopted an SB 8 map that had only

02:3620% overlap with the Robinson illustratives, then that's one way in which the VRA decisions

02:41are not preclusive here.

02:42We lose this case.

02:43I think the other way, and I think this is what your question was getting at, is that

02:48in the wildly wrong case, you know, I think we just can't, we can't dispute that there

02:54may be some case where objectively on both sides of the aisle, everybody agrees that

02:59the court just got the law on the facts wrong.

03:01I think that's a case we have to give up and we're happy to give it up.

03:04But barring that case, when a federal court, two federal courts, tell a state what the

03:09law requires, to me that means that there should be a very, very high bar in this court's

03:14precedence for second guessing what those federal courts say.

03:18And I think you just leave that hypothetical out there as a potential odd case that may

03:22never arise, but we acknowledge that, you know, it is out there.

03:25I mean, is it also because of the position that it puts the state in here?

03:29I mean, it's not just a matter of your obedience to the federal court order, which I appreciate,

03:33you know, you would be obedient to the federal court order, but it's also that if you had

03:37continued to litigate the Robinson, if you had continued to litigate in Robinson, you

03:42risked having the court imposed map.

03:44And so it's really your litigation risk that's part of the calculus here.

03:48That's one risk, Your Honor.

03:49I think it's both litigation risk and political risk.

03:51Because remember, if you look at page 601 of the Fifth Circuit's decision, they say

03:54now that we have affirmed the district court on the merits, we don't doubt that the legislature

03:59might want to take this opportunity to draw a new map now.

04:02And here's a deadline, January 15th, 2024.

04:05You call that litigation risk, you can call that political risk, whatever it is, it's

04:08forcing the state to make a call.

04:10It's wrapped up together.

04:11Yeah, that's correct.

04:12So if you lose, then you risk that the district court's going to impose a map on you.

04:16That's exactly right, Justice Breyer.

04:17Okay.

Kavanaugh, Barrett Question Attorneys On Political Considerations In Racial Gerrymandering Case

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