Sotomayor torches “unprecedented” Supreme Court ruling that could gut protections for Black voters

The court's "shadow docket" ruling is "unprecedented," "extraordinary" and "unnecessary," liberal justices say

By Igor Derysh

Managing Editor

Published March 24, 2022 6:55PM (EDT)

Supreme Court Justice Sonia Sotomayor (Win McNamee/Getty Images)
Supreme Court Justice Sonia Sotomayor (Win McNamee/Getty Images)

The Supreme Court on Wednesday sided with Wisconsin Republicans in a lawsuit over the number of Black-majority districts in the state, raising concerns that the court could gut Voting Rights Act protections.

In an unsigned ruling, the court rejected a challenge from congressional Republicans over a new congressional map adopted by the Wisconsin Supreme Court that had been proposed by Democratic Gov. Tony Evers. But the court issued a second unsigned ruling overturning the Wisconsin Supreme Court's decision to also adopt a state legislative map proposed by Evers.

Last year, Evers rejected a legislative map drawn by the Republican-led legislature that maintained the GOP's outsized advantage following the party's aggressive 2011 gerrymander. The matter went to the state Supreme Court, where a bipartisan majority approved maps proposed by Evers. The governor's maps still maintained a Republican advantage in the legislature but increased the number of Black-majority districts from six to seven. The Republican map aimed to shrink the number of Black-majority districts to five. Evers argued that the additional district was needed to comply with Section 2 of the Voting Rights Act, which protects against voting discrimination, while Republicans argued that it constituted an illegal "21st-century racial gerrymander."

The state Supreme Court allowed the map to stand because it best complied with the court's criteria for the new maps, including a requirement that they not depart too much from existing district maps. In the majority opinion, Republican Justice Brian Hagedorn wrote that the court was not "certain" that the additional district was "required" but said there were "good reasons" to believe it was. He added that reducing the number of Black-majority districts, as Republicans wanted, would illegally dilute the power of Black voters.

The U.S. Supreme Court's Wednesday ruling sent the case back to the Wisconsin Supreme Court, ruling that the court did not consider carefully enough whether the Voting Rights Act's protections for minority voting power required an additional Black-majority district. In its unsigned opinion, the court found that the state Supreme Court failed to consider "whether a race-neutral alternative that did not add a seventh majority-Black district would deny Black voters equal political opportunity."

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The opinion drew a fiery rebuke from liberal Justice Sonia Sotomayor, who was joined in her dissent by Justice Elena Kagan, arguing that the Supreme Court faulted the Wisconsin Supreme Court for failing to undertake an analysis no one had asked for.

"The Court's action today is unprecedented," Sotomayor wrote. "In an emergency posture, the Court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the State's redistricting, a decision rendered after a 5-month process involving all interested stakeholders. Despite the fact that summary reversals are generally reserved for decisions in violation of settled law, the Court today faults the State Supreme Court for its failure to comply with an obligation that, under existing precedent, is hazy at best."

Sotomayor added that the Wisconsin court had chosen one map out of several proposals and did not draw the map itself, and that no parties involved disputed that the Voting Rights Act required some number of majority-Black districts.

"This Court's intervention today is not only extraordinary but also unnecessary," Sotomayor wrote, noting that the state Supreme Court opened the door to legal challenges against the map. "I would allow that process unfold, rather than further complicating these proceedings with legal confusion."

Legal experts also called out the court for using the "shadow docket" to decide on the lawsuit. The shadow docket largely deals with emergency orders and summary decisions without standard oral arguments. Whereas cases typically go through a lengthy process and are argued before the justices, who then hand down a lengthy opinion, the court hands down expedited rulings in emergency cases that are typically short and unsigned. Though such cases were relatively rare in the past, the court's use of the shadow docket exploded during the Trump era.

Wednesday's ruling underscored the court's growing willingness to use the shadow docket to rule on controversial political disputes.

"It reinforces how willing the conservative majority is to use emergency shadow docket orders based upon new — and deeply contestable — understandings of the Voting Rights Act," Stephen Vladeck, a law professor at the University of Texas at Austin, told The Washington Post.

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The trend is particularly curious given that several Supreme Court justices have publicly sought to push back on criticism that the court is increasingly politicized.

"This is part of a pattern, we keep seeing more signs of a court that, rather than moderating its tone in response to those charges, is doubling down," Vladeck said.

Rick Hasen, an election law expert at University of California, Irvine School of Law, agreed in a blog post that 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 Supreme Court reached its decision following just a "skimpy briefing with no oral argument or a chance to fully consider the issues," Hasen wrote. At the same time, the court's ruling "even further narrows the scope of Section 2 of the VRA, making it harder for plaintiffs to win such cases."

Michael Li, a redistricting expert at the Brennan Center for Justice, said he was "stunned" by the ruling, which he called "head-spinningly aggressive." He noted that the Wisconsin Supreme Court was clear that adjudicating Voting Rights Act or Equal Protection clause issues would require a fuller briefing and arguments.

"In that instance, the burden of proof would be with the plaintiffs," he wrote on Twitter. "Instead, SCOTUS… shifted the burden to the Wisconsin Supreme Court."

The Supreme Court also agreed to hear a similar case about race-based voting districts in Alabama but allowed the map drawn by the Republican-led state legislature to stand for the upcoming elections. The reasoning was that it's now too close to the start of voting to redraw the districts, even though a lower federal court had ruled that the map illegally diluted the power of Black voters. But the Supreme Court evidently had no such qualms about kicking the Wisconsin map back to the state Supreme Court ahead of the state's August primaries.

After refusing to consider Voting Rights Act claims "in other states because 'it's too close to the election,' the U.S. Supreme Court today violated its own precedent and any measure of common sense," Sachin Chheda, director of the Fair Elections Project in Wisconsin, told The New York Times. "Never has it been clearer that the U.S. Supreme Court majority will do anything it can to advance Republican interests, rather than the law, the Constitution and the will of the people."

Some leading Democrats warned that the Trump-packed Supreme Court "continues to put its legitimacy at risk."

The court's "ongoing willingness to act in an inconsistent manner and to ignore precedent raises real questions about its functioning," said former Attorney General Eric Holder, the chairman of the National Democratic Redistricting Committee, noting that the court previously "wrongly" claimed that it was too close to the election to rule on the Alabama case.

"Today, the Court took a contrary position when it acted as close to the time of an election with the effect of harming black Wisconsin voters' meaningful participation in the political process," he said. "This unprecedented act and inconsistent application of judicial power are manifestly and sadly undemocratic."

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By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Politics Redistricting Sonia Sotomayor Supreme Court Tony Evers Voting Rights Act Wisconsin