New Episode: Ninja Court Packing
The latest episode of Divided Argument, Ninja Court Packing, is up:
We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.
As always, feel free to post your thoughts below!
With the greatest amount of respect as can come across in a Substack comment, Will, when will you no longer present as being confused and just call a spade a spade: the Court is not being consistent; the Court is acting politically, even if only in some aspects of its actions and not all aspects; the Alito response to Jackson’s dissent from expediting the mandate in Callais amounts to “I am rubber and you are glue”; you give them too much credit when you either hope that some other explanation arises or when you accept whatever ad/post hoc explanation may someday arise.
I expect I come off as a crazed leftist here but I believe I am someone who does his best to give the Court the benefit of the doubt and soberly assess their rulings. As much as the recent Clean Power Plan memo coverage threatens to be Will’s “Joker moment”, Callais (and the follow on items) threatens to be my own.
I regret feeling the need to be crass, and I threaten my own attempt to be seen as a serious commentator, but the Chief is smelling his own farts when he says/suggests, in response to all this, that people do not understand the Court and how it works.
While I agree that Purcell looks pretty random and arbitrary I worry people aren't being charitable enough to SCOTUS here. I think it's worth asking how you would have felt had the roles been reversed. Imagine SCOTUS had just upheld the traditional majority-minority understanding of the VRA and ruled that was constitutional (or even constitutionally required) and a district court had redrawn Alabama districts to *eliminate* a majority-minority district on the -- now rejected -- theory that doing so was an unconstitutional use of race.
Would you really say Purcell forces the court to leave in place the unconstitutional injunction that disenfranchised black voters over legislative objections?
Ultimately, I agree with Dan's (or was it Will) conclusion that deciding the case now was a poor choice (should have decided Callais earlier or let this wait) and Purcell looks pretty arbitrary. But I think reversing the situation reveals that so much of our intuitions here are really downstream of whether it feels like the lower court was engaged in illegal racial discrimination with it's injunction.
So yes I think Purcell is very problematic but at the same time it's one of those principles that only really seems to bite when you disagree with the underlying reasoning. Doesn't mean the court isn't wrong or don't deserve criticism but I think it shows that they are acting within the usual human imperfection of a court.