The Federalist Society uses the Shadow Docket to pass create unpopular conservative laws.
The Court has been doing lately is using the Purcell principle to say;
- we can’t overturn these illegal Republican maps because we’re a mere eight months from an election
- then overturning Democratic maps for an election 4.5 months away
#BREAKING: #SCOTUS uses shadow docket to summarily throw out Wisconsin Supreme Court ruling adopting Governor Evers’s redistricting maps.
Sotomayor and Kagan publicly dissent:
Breaking: Supreme Court, in Bizarre Unsigned Opinion, Strikes Wisconsin Legislative Maps on Voting Rights Grounds, Signalling New Hostility to the Voting Rights Act
In a per curiam (unsigned) opinion on the shadow docket, over the dissent of Justices Kagan and Sotomayor, the Supreme Court has rejected a redistricting plan that a divided Wisconsin Supreme Court had adopted for drawing state assembly and senate districts. I am on my way to teach and so I have time for just a brief analysis here, but the way this case was handled is quite bizarre and is another signal of a conservative supermajority of the Supreme Court showing increasing hostility to section 2 of the Voting Rights Act.
The majority decision essentially says this: there was an impasse between the Democratic governor and the Republican legislature over drawing district lines. So the court had to draw lines in the first instance. It set forth criteria which essentially said that parties should propose maps that make the least change from the maps of the last decade. The court adopted the Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act because the failure to draw the district would violate Section 2 of the VRA. When the state supreme court adopted the Governor’s maps, it left open the possibility that they could be challenged later as violating the VRA or as an unconstitutional racial gerrymander (a Shaw claim), violating the Constitution’s equal protection clause. There was no full airing of either issue in this fast-track litigation to draw the district lines.
I suppose it’s fitting that Donald Trump, a lawless president, would saddle the country with a lawless Supreme Court. This isn’t merely a matter of “denying Biden the same deference” that it extended to the Trump administration, nor of enacting Republican policy preferences on farcical and frequently incoherent grounds. It has at least twice removed injunctions on laws that are “unquestionably illegal under controlling precedent.”
What’s happened to the Supreme Court is, in broad strokes, consistent with what we’ve seen in other cases of democratic backsliding, such as Poland and Hungary.