The Supreme Court Has Abandoned All Pretense

In the old days, it used to require actual work to show that the Supreme Court justices were driven by their personal beliefs instead of straightforwardly applying law, precedent, and procedure. You’d have to connect dots across multiple rulings and explain intricate legal doctrines. Even then, it might be too speculative to be truly persuasive.

These days, I could probably convince my two-year-old son of the high court’s shenanigans just based on a single day’s rulings. Such a day arose on Tuesday this week when the court handed down two major shadow-docket rulings. The two decisions are completely unrelated, save for the common flaws that they expose among the conservative justices’ approach to their jobs.

The first case, Malliotakis v. Williams, is a challenge to the recently redrawn borders of New York’s eleventh congressional district. The state redrew its boundaries to, among other reasons, make it harder for New York Representative Nicole Malliotakis, a Republican, to win re-election this fall. She is one of many incumbents who will likely lose their seats amid the nation’s gerrymandering wars over the last eight months.

Malliotakis and a coalition of other litigants filed a lawsuit after the redrawn maps were issued, arguing that the Independent Redistricting Commission had impermissibly relied on race when it redrew her district’s boundaries. The state trial court in New York agreed, concluding that the commission had illegally moved groups of Black and Hispanic voters into her district that would ultimately dilute their votes. It ordered the state to draw the district as a “crossover district,” meaning one where minority voters would have a decent chance of electing their own member of Congress.

Racial gerrymandering is back in vogue these days after the Supreme Court signaled last year that it would strike down part of the Voting Rights Act of 1965 to allow states to engage in it more freely. According to the offending states, when legislative maps are redrawn to remedy racial gerrymandering, that action itself amounts to racial gerrymandering and is constitutionally impermissible. If the court accepts that argument in Louisiana v. Callais this term, it will destroy minority political representation in Congress in the long term.

The court’s decision in Callais has yet to come out, however, which means that any interim case where the justices discuss the matter is destined to merit heightened attention. While the trial court sided with Malliotakis and her allies, it also effectively forbade the state from using its existing map by ordering the state’s redistricting commission to draw a completely new one. Malliotakis et al. opposed that move, arguing that the trial court had invented a new race-based standard while ruling in her favor.

Their next step was to ask both New York’s intermediate appeals court and its highest appeals court at the same time to overturn the injunction. (I won’t use their actual names because the good people of the state of New York, for reasons known only to them, use confusingly different names for their state courts than the rest of the nation.) The state’s highest court transferred the case to the intermediate court on jurisdictional grounds, while the intermediate court is still considering its options. From there, the plaintiffs asked the Supreme Court to intervene.

That sequence of events may seem normal at first glance, but it is actually highly unusual. The Supreme Court occasionally hears cases directly from the federal district courts without waiting for the federal circuit courts of appeal to weigh in. This process is known as certiorari before review, which uses the Latin term for the court’s usual petition process. One such case this term is Trump v. Barbara, the highly consequential case on Trump’s executive order on birthright citizenship.

When it comes to state court proceedings, however, the justices are supposed to wait until the state’s highest appellate court weighs in before reviewing the case. There are good practical reasons for this—many more state-level cases are filed and adjudicated each day than federal cases. There are good and principled reasons as well: States are separate sovereigns in our constitutional order, and the Supreme Court typically defers to their internal court processes on federalism grounds before getting involved.

That didn’t happen here. Instead, the conservative justices bypassed the other New York courts and issued a stay of the trial court’s injunction. They didn’t bother to explain their reasoning; their order simply uses the barebones formula for staying a lower court’s order. In other words, the court’s conservative members went out of their way to change their normal procedures in shadow-docket cases to benefit a Republican member of Congress as she tries to fend off a less favorable legislative map.

Chief Justice John Roberts famously compared his job to that of an umpire who “only calls balls and strikes” during his confirmation hearing more than two decades ago. Tuesday’s ruling is akin to allowing a batter who hits a single into deep center field to touch first base and then go straight back to home plate. “Why not?” the umpire might tell himself. “After all, the was probably going to reach home anyway, and we didn’t want to waste the crowd’s time with the rest of the base paths.”

Justice Samuel Alito, who is a baseball fan himself, offered the only scintilla of explanation for the high court’s intervention. He argued that the trial court’s order “blatantly discriminates on the basis of race” because it ordered a new map to be drawn that would allow minority votes to elect their preferred candidate. “That is unadorned racial discrimination, an inherently ‘odious’ activity that violates the Fourteenth Amendment’s Equal Protection Clause except in the most extraordinary cases,” he claimed.

That all may well be good and true, but the procedural questions remain. Under federal law, the Supreme Court only has jurisdiction over “final judgment and decrees” from a state’s highest court. Alito argued that the current case fit that bill. New York’s intermediate appeals court “refused to issue a stay,” he claimed, “and by order issued on February 11, the [highest New York Court] sent the appeal filed in that court to the [intermediate court] and dismissed applicants’ motions for a stay.”

Justice Sonia Sotomayor and the court’s other two liberals didn’t buy it. “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me,’” she wrote. “Time and again, this Court has said that federal courts have limited jurisdiction. Time and again, this Court has said that federal courts should not interfere with state-court litigation. Time and again, this Court has said that federal courts should not meddle with state election laws ahead of an election. Today, the Court says: except for this one, except for this one, and except for this one.”

To accept Alito’s reasoning, one must conclude that the transfer from New York’s highest court to its intermediate one amounted to a decision on the merits. (Note that none of the other five justices signed on to his concurring opinion.) It plainly did not. As Sotomayor explained, the state’s highest court did not itself have jurisdiction to hear an appeal directly from its trial court. Transferring it back to the intermediate court was their way of saying the plaintiffs had to touch second base before reaching third. The state’s highest court “did not resolve anything on the merits, much less finally, when it told defendants to seek relief from the [intermediate court] first,” Sotomayor explained.

In doing this, the Supreme Court has effectively rewarded Malliotakis and her allies for their procedural deceit. Why bother running anything consequential by New York’s highest court—or any other state supreme court, for that matter—in the future when you can file a procedurally defective appeal with them, then use their transfer of it back to the intermediate court as a stepping stone to get to the Supreme Court? As long as the conservative justices are friendly to you, you don’t need to bother with hitting doubles or triples anymore. You can just run straight home.

The other case, Mirabelli v. Bonta, involves a challenge by the parents of children who identify as transgender to a California law that forbids school officials from discussing a student’s gender transition with their parents unless that student consents to it. Some of the plaintiffs with religious objections argued that the law infringed upon their First Amendment rights to instill their own religious faith in their child, pointing to last year’s ruling in Mahmoud v. Taylor. In that decision, the court’s conservatives expanded the First Amendment to allow parents to opt out of LGBTQ-friendly teaching materials.

Unsurprisingly, the conservative justices apparently agreed with that view. The other parental plaintiffs, however, argued that the California law intruded upon their rights as parents, which they said were guaranteed by the Fifth Amendment’s Due Process Clause. The doctrine that the clause protects unenumerated rights through its reference to “liberty” is known as substantive due process. This argument, too, was apparently endorsed by the conservative justices without caveats.

Wait, really? Justice Elena Kagan, writing for herself and Justice Ketanji Brown Jackson, couldn’t help but note that the conservative justices have been deeply hostile to substantive due process until now. That hostility is practically an article of faith in conservative legal circles, in no small part because it formed part of the reasoning behind Roe v. Wade. Or, at least, it was an article of faith until it became a convenient means to an anti-transgender end.

To that end, Kagan quoted Thomas describing the doctrine as “particularly dangerous” because it allegedly allows judges to go “roaming at large in the constitutional field guided only by their personal views.” Gorsuch, she noted, has denounced the “judicial misuse of the so-called ‘substantive component’ of due process to dictate policy on matters that belonged to the people to decide.” And Kavanaugh, she observed, had criticized substantive due process by arguing that it had allowed “nine unelected members of this court the unilateral authority to write the Constitution.”

So what changed? In a concurring opinion, Justice Amy Coney Barrett said that the outcome was perfectly defensible under the court’s precedents. (Roberts and Kavanaugh joined her, but Thomas, Alito, and Gorsuch conspicuously did not.) She pointed to the court’s 1997 ruling in Washington v. Glucksberg that held that substantive due process only applied to unenumerated rights that are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.” The court simply applied Glucksberg to overturn Roe by concluding there was no “deeply rooted” right to obtain an abortion.

That might be more defensible, given that the court’s longstanding precedents have recognized a parent’s right to raise their child since at least the 1920s. And Kagan acknowledged that the plaintiffs might ultimately prevail on the merits because of those precedents. But she still found fault with the court’s approach to substantive due process and transgender rights, dating back to before the court’s ruling in United States v. Skrmetti last year.

Skrmetti involved a challenge to a Tennessee law that banned gender-affirming care for transgender youth, even with their parents’ support. The kids’ parents, suing on their behalf, argued in the lower courts that the law was unconstitutional on both Equal Protection Clause grounds and substantive due process rights. They even invoked similar precedents as the parents in Mirabelli.

“But the Court, when deciding to grant certiorari in Skrmetti, limited its review to the equal protection issue: It would not even hear the parents out on their substantive due process claim,” Kagan noted. It would be interesting to learn how exactly that happened. The court has broad discretion to rework the questions presented, but it takes place behind closed doors in conferences that the justices do not discuss publicly.

The net result is that parents can invoke substantive due process when they oppose their child’s gender transition, but not when they support it in the face of state-led efforts to suppress it. Barrett famously wrote a concurring opinion in Skrmetti where she argued that transgender Americans did not qualify for heightened protection under the Equal Protection Clause. One prong in the court’s test for that protection is whether a group has faced a history of de jure discrimination.

After reviewing the evidence provided by the litigants in that case, Barrett said it was “sparse but suggestive of relatively little de jure discrimination.” Ironically, she and her colleagues are apparently eager to build such a record on their own. Maybe that will help future transgender litigants at the Supreme Court someday. Unfortunately, it will only be useful when there is a majority of justices that is willing to consistently apply legal principles instead of zig-zagging to reach preferred policy outcomes. That majority does not currently exist.