WASHINGTON, DC – MARCH 07: U.S. Supreme Court associate justices Samuel Alito (L) and Elena Kagan testify about the court’s budget during a hearing of the House Appropriations Committee’s Financial Services and General Government Subcommittee March 07, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
U.S. Supreme Court Justice Elena Kagan led the Court’s liberal wing in a scathing dissent against Justice Samuel Alito‘s majority decision upholding South Carolina‘s new redistricting maps said to be gerrymandered to dilute the power of Black voters.
Over 35 pages, Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, railed against the six-member majority for its “upside down” analysis, its “self-serving” refusal to acknowledge factual evidence, and her fellow justices’ lack of humility.
Mapmakers accused of using ‘racial data to draw electoral maps’
South Carolina’s District 1 was a thin strip of land stretching along the Atlantic coast, bordered by District 6, the state’s only majority-Black district. After the 2020 census, South Carolina had to redraw both districts and chose to do so by transferring 53,0000 residents — a group that was disproportionately Black — from District 6 into District 1.
Challengers of the map argued to the trial court that “the State’s mapmakers were experienced and skilled in the use of racial data to draw electoral maps,” and that they set precise racial parameters “to achieve their partisan goals,” and effect a “large-scale exclusion of African-American citizens.”
In what Kagan termed a “starkly different stor[y],” South Carolina said the districting decisions had been made, “on political data alone,” merely to create a “Republican advantage,” without any race-based aims.
As Kagan would later explain in her dissent, the legal question was not whether the state’s goal had been political or racial, but rather, whether the state advanced its goals “primarily by racial means.”
Testimony at the trial court level showed that mapmakers consistently used racial data in the line-drawing process, and a statistics expert testified that South Carolina’s politics-only explanation did not explain the extreme racial disparity created by the redistricting.
Supreme Court finds ‘no direct evidence’ of bias despite lower court findings
After an eight-day trial, a three-judge district court “did not believe the state officials,” and found that the districting maps had been gerrymandered by race. The court barred South Carolina for using the map for District 1, and the lawmakers appealed directly to the Supreme Court.
Writing for the Court’s six-member majority Thursday, conservative Alito wrote that “no direct evidence” supports the trial court’s finding that race had been a key consideration when the map was drawn.
“The circumstantial evidence falls far short of showing that race, not partisan preferences, drove the districting process,” Alito wrote. He added that state lawmakers should be presumed to have acted in good faith.
Alito said that the district court had incorrectly inferred bad faith on the part of the legislators, and that the misstep amounted to “clear error” warranting reversal of the court’s decision.
The ruling means that civil rights plaintiffs who contest voting maps based on racial gerrymandering will face a tougher battle in the future.
Kagan’s dissent: Supreme Court majority is ‘seriously wrong’
Kagan slammed the majority for going “seriously wrong” in reviewing the lower court’s finding — and criticized both Alito’s logic that “fails at every turn,” as well as the majority’s method of “pick[ing] and choos[ing] evidence to its liking,” while “ignor[ing] or minimiz[ing] less convenient proof.”
Kagan made no secret of her disdain for the majority’s willingness to step in and undo a finding made by a trio of trial court judges after a lengthy trial.
“The majority declares that it knows better than the District Court what happened in a South Carolina map-drawing room to produce District 1,” wrote Kagan, “But the proof is in the pudding: On page after page, the majority’s opinion betrays its distance from, and lack of familiarity with, the events and evidence central to this case.”
Kagan said the majority gave “the wrong side” the “benefit of the doubt,” and that with the ruling, it “invents a new rule of evidence,” designed “to burden plaintiffs in racial-gerrymandering cases.”
Kagan took issue with Alito’s reasoning that the map challengers should have submitted an alternate districting map. Such a requirement amounts to a kind of “micro-management” that is generally “unheard of in constitutional litigation,” said Kagan. Several times throughout her dissent, Kagan railed against the majority for its “upside-down” application of legal standards that she said is the product of its being “intent on changing the usual rules when it comes to addressing racial-gerrymandering claims.”
Kagan did not stop there. She accused the majority of having “suspicion, and indeed derision” for cases that challenge allegedly gerrymandered maps, and said that the majority is trying to “insulate” states against challenges to their own “offensive and demeaning” deprivation of “the most fundamental of all their political rights.” The justice said that via its ruling, “the majority thwarts efforts to undo a pernicious kind of race-based discrimination.”
Kagan had blunt words for her fellow justices about what they should have done to stop South Carolina’s race-based disenfranchising:
The proper response to this case is not to throw up novel roadblocks enabling South Carolina to continue dividing citizens along racial lines. It is to respect the plausible — no, the more than plausible — findings of the District Court that the State engaged in race-based districting. And to tell the State that it must redraw District 1, this time without targeting African-American citizens.
She also not-so-subtly framed the majority’s decision as one based on arrogance, as she reminded readers that “[t]rial courts are the judiciary’s factfinding specialists,” who see the unfolding of evidence, the nature of voluminous documents, and the testimony of witnesses live and “up close.” Given that close proximity to evidence, Kagan said that trial courts generally “will do better at factfinding than an appellate court parachuting in at the last moment.”
Against such a backdrop, Kagan said that when an appellate court disagrees with a trial court’s view of facts, “we are the ones likely to be wrong.” Kagan said that legal standard of “clear error,” is not just a recognition of the trial court’s comparative competence, but also a “forced dose of humility,” adding, “a virtue which sometimes doesn’t come naturally to appellate courts.” To underscore the point, Kagan followed up with, “Apply that last point to this Court in particular.”
Kagan said the majority gave mere lip service to the clear-error standard, invoking the words, but then doing “the opposite of what the standard commands.”
Kagan gave an exhaustive account of the evidence adduced at the district court level and said that the majority’s response amounted only to no more than, “a series of self-serving denials,” that amounted to the justices “putting a thumb on the scale against the District Court.”
Kagan ended her lengthy dissent with a paragraph about the message Alito and the majority sent to state legislators who seek to manipulate voting districts to disenfranchise minority voters:
What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains — to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a “possibility” of non-race-based decision-making, and it will be “dispositive.” And so this “odious” practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue … In the electoral sphere especially, where “ugly patterns of pervasive racial discrimination” have so long governed, we should demand better — of ourselves, of our political representatives, and most of all of this Court.
In Alito’s majority opinion, he said bluntly that “there is no substance to the dissent’s attacks.”
You can read the full ruling here.
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