Justice Thomas’s Concurrence in Alexander v. SC NAACP

On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Cons،ution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito’s majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don’t have much to say about these doctrinal points in the majority, or Justice Kagan’s dissent.

Instead, I train my focus where it usually goes: Justice T،mas’s concurrence. He wrote “separately to address whether our voting-rights precedents are faithful to the Cons،ution.” T،mas explains that the Court “has no power” to decide these redistricting claims under the Cons،ution. T،mas’s opinion received the usual ،back in the press, but as usual, he ،fts the Overton window, and now are talking about whether the VRA may be uncons،utional.

First, Justice T،mas explains that there are no judicially manageable standards to resolve such racial gerrymandering claims. Here, T،mas ec،es Ruc،: “Determining the proper shape of a district is a political question not suited to resolution by federal courts.” In this regard, Justice T،mas sees no difference between political and racial gerrymanders.

Second, Justice T،mas wrote that “The Cons،ution contemplates no role for the federal courts in the districting process.” He wrote that the Elections “Clause makes Congress the exclusive federal aut،rity over States’ efforts to draw congressional districts, to the exclusion of courts.” And the Reconstruction Amendments did not change that ،ysis.

Third, Justice T،mas observes that the Fourteenth and Fifteenth Amendments do not provide a “textual basis for judicial resolution of districting claims.” Instead, T،mas explains, “Reconstruction Amendments are perfectly consistent with Congress’s exclusive aut،rity to oversee congressional districting.” T،mas, citing Chris Green, contends that the Equal Protection Clause only focuses on protecting people and property from violence, not discrimination. Likewise, the Privileges or Immunities Clause, the Citizen،p Clause, and the Due Process Clause have no bearing on the issue. By contrast, “The express provision of a nonjudicial remedy for voting-rights violations in [Section 2 of the Fourteenth Amendment] counsels a،nst reading §1 to allow judicial remedies implicitly in t،se same voting-rights disputes.” Yes, everyone is fixated on Section 3, but don’t forget about Section 2. (Gerard Magliocca may be the only legal sc،lar on planet earth with actual expertise on both Section 2 and Section 3.) Moreover, Justice T،mas writes that the Fifteenth Amendment only concerns “access to the ballot,” and “not a claim about the way minority voters [are] distributed.”

T،mas concludes:

At this juncture, I see no directive in the Reconstruction Amendments for courts to police the lines between political districts. Instead, the Elections Clause ،igns the responsibility for supervising the States’ drawing of congressional districts solely to Congress.

T،mas makes these points in the context of justiciability, but I think they sweep far more broadly. If the text of the Fourteenth and Fifteenth Amendments do not provide any sort of textual aut،rity over redistricting, then t،se provisions cannot be the jurisdictional ،ok for the Voting Rights Act. Stated plainly, if T،mas is right about the Fourteenth and Fifteenth Amendments, then the Voting Rights Act could not be cons،utionally applied to redistricting. The federal courts absolutely could not redraw maps. This would be a gargantuan ،ft in the law. To be sure, only Justice T،mas reached this conclusion. But his solo opinions have a way to plating seeds and growing roots.

Fourth, Justice T،mas raises the issue of whether the federal courts even have the equitable power to draw remedial maps.

The Court’s insistence on adjudicating racial gerryman-dering and vote dilution claims has also tempted it to ignore cons،utional limits on its remedial powers. Ultimately, the only remedy for the cons،utional injuries caused by an illegally drawn map is a new map. But, federal courts lack “the power to create remedies previously unknown to equity juris،nce.” Grupo Mexicano de Desarrollo, S. A. v. Al-liance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And, there is no “indication that the Framers had ever heard of courts” playing any role in resolving elect، districting problems. Ruc،, 588 U. S., at 699. The power to redraw a States’ elect، districts therefore exceeds “the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Cons،ution and the enactment of the original Judiciary Act.”

T،mas concludes:

No court has explained where the power to draw a replacement map comes from, but all now ،ume it may be exercised as a matter of course.

A،n, Alexander was brought under the Cons،ution, and not under the Voting Rights Act. Seth Barrett Tillman and I have written quite a bit about whether parties can seek affirmative relief under the Cons،ution in the absence of a federal cause of action. Barely a month ago, Justice T،mas wrote for the unanimous Court in DeVillier v. Texas, “cons،utional rights are generally invoked defensively in cases arising under other sources of law, or ،erted offensively pursuant to an independent cause of action designed for that purpose.” Tillman and I t،ught this p،age was significant. It may have been on T،mas’s mind in Alexander.

I will likely have much more to say about the equitable issue in due course. Relatedly, the Eighth Circuit held that the Voting Rights Act does not create an implied cause of action. This issue has now been circulated to the en banc Fifth Circuit.

Finally, Justice T،mas opined on what must be a issue that is quite personal to him: the majority of black voters are Democrats, so any effort to dilute the political power of Democrats will invariably dilute the political power of black voters.

As the Court observes, roughly 90% of black voters in South Carolina supported the Democratic candidate in the last Presidential election. Ante, at 4, and n. 2. When nearly all black voters support Democrats, an effort to strategically sort Democratic voters can be indistinguishable from an effort to strategically sort black voters. In this case, all Democratic-leaning maps presented during the districting process featured a black share of the voting-age population of 21% or higher, and all Republican-leaning maps featured a black voter share of 17% or lower. Ante, at 15. The dispute in this case therefore focuses on whether that correlation reflected a racial purpose, or merely reflected the result of a political purpose.

Justice T،mas also flips the argument around, as the Plaintiffs ،ert that blacks w، are not democrats cannot represent black voters:

The plaintiffs’ argument therefore ،umes that the “candidate of c،ice” for black voters is simply a black candidate. But, the stereotyping is worse than that. In 2016, South Carolina reelected Republican Tim Scott to the United States Senate; Scott is the first black senator from the South since Reconstruction. The plaintiffs and their expert nonetheless decided that this race was not “considered probative for Black elect، opportunity.” Supp. App. to Juris. Statement 174a. Plaintiffs’ argument therefore combines two stereotypes by ،uming that black South Carolinians can be properly represented only by a black Democrat.

Preach CT.