Holy William O. Douglas! The Supreme Court found a devious way not to take a position on institutional racism, a deft dodge on an important issue, and come to something within an area code of justice in a case involving election law. I may never recover.
On Tuesday, in a case involving some obvious racial gerrymandering of the election maps in Virginia, the Court, by a 5-4 majority with Justice Ruth Bader Ginsberg writing its opinion, determined that the Virginia House of Delegates didn't have legal standing to bring its appeal of a district court's determination that the previous map's districts had been concocted with race as its primary determining factor. The job was then handed to a court-appointed monitor, and it was his map that was used in last week's state primary elections.
Mark Herring, Virginia's attorney general and a Democrat, declined to appeal the district court's decision, so the House of Delegates decided to do it anyway. Wrong, said Justice RBG. From Amy Howe at ScotusBlog:
The House of Delegates, Ginsburg explained, argued first that it had standing to appeal to the Supreme Court to represent Virginia’s interests. But Virginia law makes clear, Ginsburg emphasized, that only the state’s attorney general has the authority to represent the state in civil litigation. Indeed, Ginsburg noted, even if Virginia had given the House of Delegates the power to represent the state, the House of Delegates never indicated in the lower court that it was doing so; instead, “the House has purported to represent its own interests” throughout the case.
Ginsburg also rejected the House’s argument that it has standing to appeal in its own right. Addressing the House’s contention that it is “the legislative body that actually drew the redistricting plan” and would lose power to draw the new districts if a remedial order gave that power to the district court, Ginsburg observed that state law gives power over redistricting to the state’s General Assembly, “of which the House constitutes only a part.”
And you people who are convinced that there is an immovable conservative bloc on the Court? Ha, says Justice RBG, who was joined in her decision by Justices Sotomayor, Kagan and...wait for it...Thomas and Gorsuch. (Breyer was part of the four-person minority.) Again, this fairly surprising decision handed down by a completely shocking combination of judges was further confirmation of the fact that the Court doesn't want any part of being the mapmaker of choice around the country, but also is aware that the Republican majorities in various state legislatures so overreached in gaming the system that Somebody Has To Do Something to fix it. (They'd already sent the Virginia map back once.)
So a majority of the Court finds some procedural fig-leaf that'll get the job done without the Court's admitting that institutional racism still infects our election process. After all, if they admit that, then what happens to the Day of Jubilee Chief Justice Roberts declared in Shelby County? As Justice Ginsberg wrote in her opinion:
“In short, Virginia would rather stop than fight on. One house of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.”
Sometimes, sleight-of-hand has the advantage over grand illusion when it comes to making something disappear.
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