Supreme Court has little regard for the record or facts | Michael Douglas

An exasperated Elena Kagan reached her conclusion: A majority of her colleagues on the U.S. Supreme Court offered “not a whit of respect” for the findings of the trial court in a racial gerrymandering case stemming from South Carolina.

The justice presented her assessment in a searing dissent last month. She made clear the 6-3 conservative majority not only cast aside a long-held standard for reversing such decisions of trial courts. It also made much more difficult the task of challenging the use of race in redrawing congressional and state legislative district lines.

The majority opinion, written by Justice Samuel Alito, even suggests the real problem isn’t racial gerrymandering. Rather, he argues that lawsuits against such discrimination are a greater threat, amounting to “weapons of political warfare” or risking “political apartheid.”

Such thinking turns civil rights law on its head.

To say the high court has encountered turbulence of late understates its troubles, most notably on the ethical front, Clarence Thomas accepting big gifts from Republican donors and the Alito household flagging its partisan bias. I wrote recently about the conservative majority taking up matters that do not rate as either a case or controversy ripe for its attention, opening the way to policy-making or scoring ideological victories.

This South Carolina gerrymander case highlights another concern — a majority with little regard for the record, or facts, as appropriately gathered by the trial court. In essence, the majority contends: We know better.

The question at the core of the South Carolina case was whether the state relied on racial data to reconfigure a U.S. House district. Everyone agreed the Republican legislative majorities wanted the district to lean more their way. To do so, they needed to move residents across district lines.

How were those residents selected? If the mapmakers targeted Democrats, that would pass muster. What isn’t permitted under the Equal Protection Clause is relying mainly on racial data to achieve a partisan purpose.

Did South Carolina focus on Black residents or just Democrats?

A panel of three federal judges conducted a nine-day trial to find an answer. They built a voluminous record, including testimony from political operatives and statistical experts. They weighed the credibility of witnesses as trial judges are well placed to do. In the end, they concluded that South Carolina relied primarily on racial data. They struck down the new map.

As Justice Kagan recounts, those challenging the map mounted the stronger argument. That edge took shape in the evidence. For instance, the mapmakers were highly experienced in the use of racial data. More, the software provided mapmakers with an immediate read on the racial makeup of a district.

Most compelling, the statisticians revealed how the use of political data alone could not account for the partisan precision of the map, “to the decimal point,” as Kagan put it. As it is, a Black voter in South Carolina is more likely to vote for a Democrat in the next election than someone who voted for a Democrat in the last election.

Thus, Kagan notes, “the single best thing” the mapmakers could do to increase the Republican profile of the district was exclude Black voters.

How did Alito and his colleagues get around the record? They ignored it, and in taking such a course, they jettisoned precedent.

Ordinarily, in such cases, the Supreme Court must give the trial court “significant deference,” its decision reversible “only for clear error.” Where did the three judges plainly fall short? The majority skips past the requirement.

Instead, Alito invents a new standard. He argues that deference actually goes to state lawmakers. They deserve the benefit of the doubt, or a presumption of acting in good faith. He warns that to do otherwise risks unduly accusing lawmakers of “offensive and demeaning conduct.”

The ruling is breathtaking, both as out of touch and imperious. The court somehow deems state lawmakers trustworthy in a realm where they are most self-interested — redistricting. Plus, South Carolina carries a long history of racially driven voter suppression.

This isn’t the first time this court has abandoned the record. Congress performed its own exhaustive fact-finding in renewing the Voting Rights Act with huge bipartisan majorities. In 2013, a court majority disdained the effort. The court gutted a key and successful provision that placed guardrails on states with such histories. Its 2010 Citizens United decision on campaign financing reflected the same, launching our era of corrupting dark money.

Add to the list more recent rulings involving affirmative action and public prayer, the work of the trial court hardly a factor as the majority pushed to assert its will. And some justices wonder why the court has a legitimacy problem? That’s what happens when ethics slide, and the record gets dismissed.

Michael Douglas was the Beacon Journal editorial page editor from 1999 to 2019. He can be reached at mddouglasmm@gmail.com.

Michael Douglas: Other states have moved away from extreme gerrymandering. Can’t Ohio?

This article originally appeared on Akron Beacon Journal: Conservative majority on Supreme Court casts aside standards