The Supreme Court’s 6-3 ruling last week in Louisiana v. Callais provided a predictable snapshot of how the justices line up in some of the most crucial cases. The decision, which struck down the state’s congressional map for wrongly taking race into account, was a clean split between the GOP appointees — all of whom were in the majority, led by Justice Samuel Alito — and the Democratic appointees, led by Justice Elena Kagan. Her dissent doubled as an obituary for the Voting Rights Act, arguing that Callais marked the “latest chapter in the majority’s now-completed demolition” of that landmark law.
But a subsequent order in the case, entered on Monday night, spotlights a murkier divide. Justice Ketanji Brown Jackson once again was the lone dissenter calling out the majority, prompting Alito to pen a pointed rebuke in turn.
While the Callais ruling itself is incredibly important for redistricting across the country going forward, the order that sparked their exchange is a procedural one whose practical significance remains to be seen. It sent the case back to the lower court it came from. Typically, that doesn’t happen until 32 days after the ruling. That standard lag time gives the losing party time to file a long-shot petition for rehearing. (It’s a long shot because granting such a petition would require the justices to consider reversing course on a ruling they just made.)
The fast-track request came from white voters who successfully challenged the map. They argued that “those 32 days could matter” here because, they said, the lower court needs to either draw or approve a new map ahead of this year’s midterm elections. Louisiana took no position on the request, suggesting that it didn’t matter whether the justices granted it because state officials were already working to produce a new map.
Black voters opposed the request, arguing that they should have the chance “to consider seeking rehearing in the ordinary course.” They also noted that the state’s congressional primary was already underway and that some overseas voters had already cast mail-in ballots. On top of arguing that the fast-track request should be denied, they urged the justices to halt their ruling from taking effect until after the 2026 elections. They cited what’s known as the “Purcell principle,” for the proposition that federal courts can’t “disrupt a state’s voting rules, including electoral maps, close to an election, much less when voters are already voting.”
But Jackson was the only justice who backed their position. The Biden appointee dissented from the majority’s unsigned one-paragraph order that summarized the parties’ positions and noted that the justices may adjust the procedural deadline. And though the Black voters asked the court to let them consider seeking rehearing on the typical timeline, the majority said they “have not expressed any intent to ask this Court to reconsider its judgment.”
In her dissent, Jackson accused her colleagues of having “spawned chaos in the State of Louisiana.”
She chided the majority for intervening rather than avoiding “the appearance of partiality” by applying the court’s normal rules. Noting that early primary voting was already underway, she recalled the court’s decision backing Texas’ map last year, in which the majority criticized a lower court for “improperly insert[ing] itself into an active primary campaign.” Jackson said the majority “unshackles itself” from “constraints today and dives into the fray. And just like that, those principles give way to power.” She called the court’s “abandon … unwarranted and unwise.”
That prompted a concurring opinion by Alito, joined by Justices Clarence Thomas and Neil Gorsuch, that said the dissent “levels charges that cannot go unanswered.” He called it “groundless and utterly irresponsible” for Jackson to accuse the majority of exercising its power in an unprincipled way.
“What principle has the Court violated?” Alito wondered. “The principle that Rule 45.3’s 32-day default period should never be shortened even when there is good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as partisan?” He concluded that Jackson’s claim that the court “unshackles itself” from “constraints” shows that it’s her “rhetoric that lacks restraint.”
One question raised by the exchange is: Where were Justices Kagan and Sonia Sotomayor in all this?
We’re left to speculate.
Looking at the order, they were in the same place as Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh, joining neither Alito’s nor Jackson’s separate opinions. If either justice had a more nuanced position than that, they were free to share it with the public.
To be sure, this isn’t the first split among the Democratic appointees. A recent example came in a Fourth Amendment case, where Jackson wrote another solo dissent. Sotomayor merely noted her disagreement with the majority without joining her colleague’s separate writing or explaining her own disagreement, while Kagan was apparently with the majority.
Contrary to the president’s claim, those three justices don’t always “stick together like glue.”
Of course, the procedural motion decided Monday raised different legal issues than the Callais decision itself. If it were the same, then we would have seen the same lineup. And all the justices who remained silent may have had different reasons for doing so.
Notably, they’ll have yet another opportunity to weigh in. On Tuesday, the voters who opposed the fast-tracking returned to the justices, asking them to reverse the order they issued Monday. The voters noted that the court justified Monday’s order by saying they hadn’t “expressed any intent to ask this Court to reconsider its judgment.” But the voters pointed back to their opposition filing that said they wanted “the opportunity to consider seeking rehearing.” To eliminate any doubt, they said in their motion Tuesday that they want to request rehearing.
Again, the practical significance of Monday’s order was unclear to begin with in terms of its effect on the midterms in Louisiana, where separate litigation is playing out in response to the GOP governor’s attempt to suspend the primary after voting had already begun.
And even if the Supreme Court gives the voters a chance to request a rehearing, we don’t expect the justices to actually reconsider the historic decision they just made.
But Tuesday’s motion means the justices aren’t free of this litigation just yet. We’ll see how they resolve this latest motion — and whether it prompts any further dissent.
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