Courthouse Steps Oral Argument: Merrill v. Milligan

Event Video

Listen & Download

On October 4, 2022 the U.S. Supreme Court will hear oral argument in Merrill v. Milligan.

Following the 2020 Census, the Alabama Legislature redrew its congressional district lines to account for shifts in the state’s population. With these new lines, only one of the state’s seven congressional districts was majority-minority. Several plaintiffs sued, asserting the districts violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth Amendment to the United States Constitution, and sought the creation of an additional majority-minority district to account for the growing African American population in Alabama.

The District Court enjoined the districts, holding that they violated the VRA. Alabama appealed to the U.S. Supreme Court, which granted Certiorari and stayed the district court's injunctions.

We will break down the argument on the same day, October 4, 2022.



David Warrington, Partner, Dhillon Law Group Inc. 

Moderator: Michael Dimino, Professor of Law, Widener University Commonwealth Law School



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Ryan Lacey:  Hello and welcome to this Federalist Society webinar. This afternoon, Tuesday, October 4, 2022, we have a Courthouse Steps webinar on the oral argument in Merrill v. Milligan, which was argued just a few hours ago in the Supreme Court. My name is Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today's program.


Today, we are fortunate to have David Warrington and Professor Michael Dimino, who I will introduce very briefly. David Warrington is a Partner of the Dhillon Law Group where he is a leader of the firm's political law practice. And Mike Dimino is a Professor of Law at Widener University Commonwealth Law School.


After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle Q&A as we can toward the end of today's program. 


With that, thank you for being with us today. David, the floor is yours.


David Warrington:  Thank you, Ryan.


Earlier today, the case of Merrill v. Milligan was argued at 10:00. It was a longer argument because there were a number of parties, and a longer time was granted for the arguments. But the case came about because after the 2020 census, Alabama created a re-districting plan for seven of its seats in the U.S. House of Representatives. This plan included one majority-minority district. And after the plan was announced, several minority group organizations challenged the plan and argue that there should've been more than just one majority-minority district. 


The challengers allege that the map effectively minimized the number of districts in which black voters could elect their chosen candidates, and therefore, it violated Section 2 of the Voting Rights Act which bans racial discrimination in voting policies. A three-judge panel of the district court agreed with the challengers that the map likely violated Section 2 of the VRA and granted preliminary injunction.


      The petitioners in the case petitioned for a stay in the case. There was hotly debated dissents and opinions regarding that, but today, it was argument on the merits focused on whether or not Alabama's redistricting plan violated Section 2.


      So at issue in the case was whether under traditional districting principles, you could've come up with a more than one minority-majority district in the Alabama redistricting. The plan that was put forth by Alabama only had one, and in the course of developing the case, the evidence below, the parties used a number of experts and used a lot of computer simulations to come up with ways to show that there were multiple ways of doing this.


      And the arguments here between the parties were really focused on a couple of nuances in the Voting Rights Act, particularly whether the Voting Rights Act required the consideration of race or whether it required treating race as a sort of an uber factor in determining compliance with the Voting Rights Act.


      The respondents, who were the challengers in the case below, argued that what Alabama needed to show was that there was no other possible way to draw any districts without a majority-minority composition. That sort of turned things on its head, according to what Alabama argued. And the justices had -- you could see where they were drawing their lines.


      Justice Jackson, who it was her second day on the Court, really took an active role in questioning Alabama on what basis they had to support their single majority-minority district. And basically, she went back to the history of the Fourteenth and Fifteenth Amendment and said that, I think the way she phrased it, the Fourteenth and Fifteenth Amendment were adopted in a race-conscious way. And that that meant that under the Voting Rights Act and under the test that's used, the precondition test, the Gingles test, that you can consider race and you have to consider race. That's really a different and new argument. I think the cases that came after Gingles really focused on traditional districting principles such as compactness, regularity of the lines, communities of interest, things like that. And if race is a component of that, it cannot predominate. And if it predominates, then it's a violation of the Voting Rights Act.


      And what Justice Jackson seemed to be saying is that you have to give race a superior consideration in the analysis because historically, the Fourteenth and Fifteenth Amendments were adopted in a race-based way to give a constitutional grounding for the later law such as the Civil Rights Act of 1866.


Now, I think the counter argument to that, and I'm not sure it came out very clear, but the counter argument was that while the Fourteenth and Fifteenth Amendments prohibit deprivation of rights based on race, it is not a command or license to use race. It kind of flips the understanding of the Fourteenth and Fifteenth Amendment on its head, which is what they would do with the current test in Gingles if you took her viewpoints. Justice Sotomayor followed that line of arguing to some degree, and that’s the main challenge to the argument of the petitioners here.


We didn't get a lot of questions -- I don't think we got any questions from Justice Gorsuch. Justice Alito really carried the torch in challenging the approach that Justice Jackson and Justice Sotomayor and to some extent Justice Kagan were advocating with their arguments. I think the Solicitor General of Alabama did a good job finally coming back around and wrapping things up and making the point that it cannot be under the present test that Gingles requires consideration of race as a predominant factor. In fact, that's inconsistent with the case law that's at issue.


There was a little bit of back and forth on that. And I think the ultimate question that is posed to the Court, and this is where Justice Roberts I think has the middle ground here, is whether they get rid of the Gingles test, which I don't think is even possible that they would do, but they specifically asked the Solicitor General of Alabama do you want to get rid of Gingles or do you want to modify it?


And I think the argument was, when he finally got around to that and clarifying that it's a modification -- not really a modification but a clarification of what Gingles is asking for, the test that Gingles requires. And I think that's going to be where the decision comes out, even though you can't read everything into oral argument. I think you may get enough votes to clarify Gingles rather than do either what Justice Jackson wants which is import race as more of a presupposition or precondition to any analysis or certainly because Alabama is not asking for either rewriting or modifying Gingles.


Michael Dimino:  Thanks, David.


      I think it might be helpful for me to provide a little bit of a background on the existing law, especially for the benefit of people who aren't involved in voting rights cases on a daily basis, may not remember much of the basic doctrine. 


      This case involves a conflict between two different lines of jurisprudence that the Court has developed over the last 35 years or so. One of them is on Section 2 of the Voting Rights Act and the other one is directly under the Equal Protection Clause. The Equal Protection Clause racial gerrymandering cases starting with Shaw v. Reno, establish that it's unconstitutional for a state to draw district lines with, as David said, the predominant consideration of race.


      Now, the Supreme Court has never said, in fact it has expressly disclaimed this idea, it has never said that it's unconstitutional to consider race in drawing district lines. Instead, the Court has said that race can't predominate. So race can't be the overwhelming factor that is considered. You can consider race as long as you consider it in context with a bunch of other kinds of factors. It's similar to the affirmative action doctrine that the Court will reconsider starting next month where you can consider race in college admissions and things but not by itself, only in conjunction with other factors as well. So that's the racial gerrymandering rule. You cannot have race predominate in the drawing of district lines.


      Section 2 of the Voting Rights Act, on the other hand, seems to require or at least as Alabama is arguing that this isn't the proper way to interpret Section 2 but at least as it has been, to my knowledge, understood to this point, Section 2 has required the district line-drawers to consider race to ensure that racial minorities have an equal opportunity to participate in the political process and to elect representatives of their choice. So Section 2 of the Voting Rights Act requires that minorities have that equal opportunity whenever a state is involved in standards, practices, or procedures with respect to voting including the drawing of district lines.


      So what the Gingles test that David referred to tries to give some practical guidance to explain when you're going to have a viable claim under Section 2 and when you're not. And what Gingles says, apparently Jingles or Gingles depending on who you ask. Justice Alito used the second formulation and then the other justices used Jingles. But that test, Thornburg v. Gingles, says that for a plaintiff to make out a successful Section 2 claim, the plaintiff must demonstrate that the minority group is sufficiently large and geographically compact to constitute a majority in a single member district, and there must be racially polarized voting. That is that minority group must vote in a sufficiently unified way so that they have a candidate of choice and the majority, what the Court refers to as the light majority, must vote sufficiently as a block to enable it usually to defeat the candidate of choice of the minority. And if all three of those conditions are satisfied, then the Court will ask, considering the totality of the circumstances, does the racial group have this equal opportunity compared to other members of the electorate to participate in the political process and to elect candidates of choice?


      And the Supreme Court has said even though minority groups don't have a right under the Voting Rights Act to elect a proportionate number of its members into legislative office, when we consider the totality of the circumstances, we will make a judgment about whether the number of districts controlled by the minority group is roughly proportionate to that minority group's share of the population.


      And so in Alabama where blacks constitute roughly 27 percent of the electorate, the claim in this case and the finding of the district court below was that two seats out of seven would yield a roughly proportionate number of legislative seats compared to the share of the population that blacks have in Alabama. Whereas the current one seat out of seven would not be a roughly proportionate share. So the district court in finding that blacks were sufficiently large and geographically compact to constitute a majority in a single member district and that there was racially polarized voting and that the second majority-minority district would be necessary to bring blacks up to a roughly proportionate share of legislative seats -- congressional seats, found there to be a Section 2 violation.


      Now, the essential conflict between those two different lines is what's brought out by Alabama's submission here. Alabama says in order to say that blacks are sufficiently large and geographically compact to constitute a majority in a single member district, you have to draw districts with the predominant consideration of race. But if you consider other kinds of factors in a more substantial way, particularly if you want to retain the core of existing districts. If you want to tinker with district lines as little as possible, you're not going to be able to draw a district or a plan that has two majority-minority districts. The only way you do that is by prioritizing race. But that effort conflicts with racial gerrymandering cases that says what you can't do under the Fourteenth Amendment is draw district lines with a predominant consideration of race.


      So it's that kind of conflict that's involved in the case, and I think that that's what Chief Justice Roberts was referring to in his dissent from the stay application back in the summer where he said the district court appears to have applied Gingles correctly as it exists now, but the doctrine as it is is causing substantial problem, in part because we have this kind of collision course that Section 2 seems to require the consideration of race even as in a case like this where race really has to be important to overwhelm other kinds of considerations to get a second district that just barely is a majority-minority district. And yet, we have this doctrine on the other side that says well, whatever you do, whatever you consider, don't make race the predominant factor. So, David, back to you with anymore thoughts you have about that.


David Warrington:  Yeah, Mike, that's an excellent point that you raise at the end because I think if you look at where -- if you go back and you look at the dissents from the stay and also the stay and the arguments that were made at that point, I think you can see where the courts are lining up, and Roberts is the pivotal vote, as I think he often is. But one of the last questions, and I think it was on rebuttal when they clarified what Alabama was looking for, were they looking for a rewrite of Gingles or were they looking for a clarification?


And the Solicitor General said a clarification. And that goes directly to what Justice Roberts had said was the problem that he thought even though he dissented from the stay, he recognized that some of the interpretations of Gingles—I was going to say Gingles—at the district court levels has been confusing. And even Justice Kavanaugh had said that before that the case law in some of this stuff is confusing. And I think the two goal posts rights now are for a clarification of that. But I think that Justice Jackson and Justice Sotomayor, and carrying along Justice Kagan, if they had their way, they would inject race into the predominant place in the analysis.


Michael Dimino:  Is there -- that's a kind of question that I had that centered around all of this is on this question of whether Alabama was arguing for a clarification or a rewrite of this, isn't it just the case that step one of Gingles almost of necessity makes race predominate in this inquiry? If you're asking whether can we draw a district that includes a majority of members of racial minority groups, it's just hard to imagine an interpretation of the Section 2 language that does what Alabama is asking here, unless you were to say -- use the constitutional avoidance cannon or something like that and say we have to adopt a kind of counter-intuitive reading of the text just to avoid the possibility of considering race in an unconstitutional manner.


David Warrington:  I think isn't that what Justice O'Connor sort of warned of that this would all collapse into a race predominate analysis? So I take your point. That's why it was a little difficult. That issue was bubbling right at the surface, and they didn't get around to really pressing on it until I think it was in the rebuttal. And I don't know if they really got an answer. I mean, they got an answer that Alabama was looking for clarification. I'm not sure they got a clear answer of what that clarification is.


Michael Dimino:  Well, what I was wondering was whether that was just a kind of litigation strategy, that if you ask for a clarification, you're more likely to get it than --


David Warrington:  Well, that's right.


Michael Dimino:  -- I want to overrule this case that's 35 years old. But when I was looking at the potential implications of this decision, it seemed to me that if Alabama wins, this is likely to be a major case. Whereas if the challengers win, it may not be quite so major because the only way for Alabama to win this case is for the prevailing understanding of Gingles to undergo a fairly significant shift, whatever label you put on it.


David Warrington:  Yeah, and I remember seeing some commentary in the early stages of this case where people were arguing for jettisoning Gingles, but that seemed to be a bridge too far. And I think maybe that's why it was settled wrong, let's try to get some clarification. But, yeah, I agree. I think if the lower court decision stands, it's kind of a big nothing. But if Alabama wins, then we're looking at a fairly -- probably a regime that you could've forecast in the law but certainly something different than what exists now.


Michael Dimino:  Now, one other thing that I'll ask you about that seemed to be bothering the liberal justices, if we adopt Alabama's view, call it the clarification, do we in essence undermine Congress's 1982 amendment? That is that the point of the 1982 amendment was to get rid of the intent test that was and remains in the Fifteenth Amendment and that was in Section 2 of the Voting Rights Act until the Court decided Mobile v. Bolden and then Congress amended Section 2 in 1982 and replaced this intent test with a results test.


      And the liberal justices were saying that what Alabama is trying to do with its interpretation of the new Section 2 is to revive the meaning of the pre-1982 Voting Rights Act. Do you think that that's an appropriate criticism, or is there some kind of middle ground there?


David Warrington:  I think that's a criticism that leaves out an important distinction. Taking it from Alabama's position, Alabama's position or argument would be that all they have to do is prove that their map was reasonable under the conditions of the other things that you analyze, whether geographically compact, communities of interest, not bizarre lines and things like that, prior districts, the pre-existing districts, and all of those things. And if the argument is from the liberal justices that you have to jump to rather than -- by doing that, you're getting to an intent standard or an intent analysis which is what was rejected in the 1982 amendments. I think that flips it on its head because the argument from the liberal justices really is you've got to consider race more than you're considering it. And that's what the challengers here did.


      If you look at the record below, there's a lot of testimony about -- and one of the experts actually said the main input that they had in their statistical analysis to produce these maps was race was the main consideration. And that's what the liberal justices are arguing for, so it really is okay, well you're saying the effect is racial discrimination, or is the effect a result based on racial considerations? So that argument, I think, while superficially it seems to make sense, I think when you dig a little deeper and scratch on it a little bit, it actually proves the weakness in that argument because if you follow what they want in the end result, the only way they can get there, and this would be Alabama's argument, is that you use race as a controlling factor.


      I know that probably didn't make a lot of sense, but I think that if the liberal justices' arguments take into a logical conclusion, that's what you end up with.


Michael Dimino:  There's also a flipside of that argument that the liberals criticize the conservatives or criticize Alabama and say that you are seeking to undermine the purpose of the 1982 amendments. But the argument in reverse, it seems to me, is that if the liberal interpretation carries the day, if the challengers to this districting scheme win this case, then basically, the interpretation of Section 2 that carries the day is if we can draw a district to bring about proportionality based on racial demographics, then we have to. And the Court is not, to this point, been willing to say quite that much but --


David Warrington:  In fact, I think the case law rejects that.


Michael Dimino:  -- if what we mean by efficiently large and geographically compact is well, we can use computers and draw districts that literally span the entire width of the state to loop in whatever black communities we can find, then that interpretation does go fairly far, does it not, into creating a right to proportional representation?


David Warrington:  Yeah, it does. And one of the things that jumped out at me, nobody actually said it, but when they were talking about the inputs. Justice Thomas opened up with the question what's our comparator? But when they started talking about the computer simulations, there was some discussion about the inputs. But the old adage about garbage in, garbage out, if you're using your computer simulation for anything, you can control the results based on the inputs. And if you interject, as one of the experts in the case, I think it was for the caster parties, did, used race as a key factor, then you can get into all this proportional representation results. And whether that's -- if that's where the liberal justices are going, it's inconsistent with the case law that's developed since the 1982 Voting Rights Act was enacted or the amendments were enacted and certainly inconsistent with the post-Gingles development of the law, even with its confusion.


Michael Dimino:  On one of the questions in the question and answer box is directing us to this kind of thing, but if we get into predicting votes, I suppose we should talk about that a bit even if we give the usual caveats that you show me somebody who's willing to predict what the Supreme Court's going to decide and I'll show you a guy who's going to lose a lot of money buying the Brooklyn Bridge.


      But it certainly seemed, and if we look at past cases, it seems like from this argument that Justice Alito was pretty willing to support Alabama's claims, whereas the three liberals seem a solid vote on that side. Thomas, largely silent, but his prior writings make fairly clear what he's willing to do. Roberts, to some extent -- well, Gorsuch is also silent so he's a bit of a wild card. Roberts didn't say all that much. Kavanaugh spoke but was equivocal. So any expectation about what we're going to see from those three who are going to decide which way the Court comes out on this? Gorsuch, Roberts, and Kavanaugh.


David Warrington:  Well, and I think one of the interesting parts of the oral argument was Justice Barrett because she really sought to understand Alabama's argument, and she pressed Alabama on that. So it's a really interesting mix because I think with Justice Thomas's prior writings and you've got Justice Alito and I'm going to take -- Justice Gorsuch is a bit of a wild card, I think. But I think those three, you could set off to one side. You could set the three liberal justices off to the other side.


      I got the sense that if Justice Roberts writes the opinion, he'll have Kavanaugh and Barrett there and it'll be a less sweeping opinion then maybe Alito and Thomas would want. But that’s how I see it lining up. I tend to give Alabama the upper hand here, but again, like you said, you lose a lot of money betting the house on how the Court's going to come out on this.


Michael Dimino:  And a final point on predictions or what we can gather from what we know already, in general, of course, when the Court stays a lower court order, you would expect that to be a pretty good indication that the Court thinks that reversal is likely. And so just based on the Court's decision over the summer to stay the district court order -- or it wasn't the summer, it was February. The decision to stay the lower courts order, you might say well, the smart money's going to be on Alabama here.


      But a couple of justices wrote explicitly to say that presumption isn't as strong in election cases because we really are nervous about district court orders that alter election rules in the time before an election. And although February seems like an awful long time before an election in November, it wasn't a lot of time. It was about two months before the primary election was scheduled. And of course, candidates need to campaign, and voters need to know who they're voting for. You need to establish districts before those primaries occur so even though elections came out --


David Warrington:  And even elections and registrars need to be able to do their jobs too.


Michael Dimino:  That's right. That's right. And so Kavanaugh, in particular, in an opinion that was interestingly joined by Alito says I'm not taking a stand. This is not a decision on the merits, and I'm voting to stay this lower court order mostly on the basis of the Purcell principle, this idea that we're not going to allow courts -- well, we're not going to allow federal courts to alter state election rules in the time right before an election. So I think that predicting the outcome given this stay is a little more difficult than it might be in most cases that have a similar procedural context.


David Warrington:  Do you think, based on Justice Roberts, the way he split the baby so to speak, do you think that gives any indication that he might take the lead on this if he's in the majority?


Michael Dimino:  Yes. I would be inclined to think that that would be likely, but next month, just in a couple of weeks, the Supreme Court's going to take up the affirmative action case. And I don't know whether he's going to want to take both of those blockbuster cases decided within a month of each other or whether one would be passed off to someone else. I think I would be shocked if Alito got an assignment in another high-profile case right away after having written the Dobbs decision.


      And if I were in Roberts' and Abbott's shoes between the affirmative case and this one, I'm not sure which one I'd take. He seems to have demonstrated an interest in both of those areas of the law. And the property rights case that was argued yesterday is also a high-profile case, and Roberts has written on that subject as well. But directly to your point, I think that point is well-taken that he does seem to like to craft middle of the road kinds of opinions, particularly if he can get five votes on that side. And if he does find himself in the middle and unable to craft an opinion, it would make sense for him to take it.


David Warrington:  Because he seemed to suggest that he agrees that there's room for clarification, and that wouldn't, depending on how he wrote the opinion, it wouldn't necessarily be a big C change. It could just be clearing up some things on the edges to refine the analysis and framework for future cases, but it doesn't necessarily have to be the big blockbuster decision.


Michael Dimino:  Well, and that would be the real interesting thing for going forward is whether it would be just a cleaning up around the edges or whether that would be just what it would be sold as, that Roberts would write it as an opinion that's just cleaning up the edges but that would really make a more substantial underlying change. Now, the dissent, I think, is fairly clear that they're going to go to the mat on this one and characterize any decision in Alabama's favor as it being quite a substantial change from the way that things were and from what they view as the proper interpretation of Section 2.


So I don’t think he's going to be able to craft a decision that's going to bring along the court in any kind of unified way. But he might be able to get one that by not reaching out to make an overtly large claim about changing the law, might be able to accomplish something along those lines and get an interpretation of Section 2 that does place more of a cap on the extent to which race can be used to create these majority-minority districts under Section 2.


David Warrington:  And how do you think the dissent would -- do you think the dissent would be the full-throated argument that Justice Jackson raised with regard to the Fourteenth and Fifteenth Amendment, framing it that way? Because I think that would be -- that seems to me is a pretty big shift in the thinking in that regard.


Michael Dimino:  I'm going fairly far out on a limb on this one, which will either look really good or really bad in another nine months. But I view Justice Jackson's argument to that effect to be a kind of warm up for next month, that I think that her discussion of the real meaning of the Fourteenth Amendment or that it's perfectly fine to be race-conscience in posing remedies to make up for past instances of discrimination, I think that's a warm up for the affirmative action cases that are going to be decided at the next court sitting.


      This one, I think, is going to be full-throated but I think the principal dissent probably would be less focused on that and more on the here's another blow to the Voting Rights Act, that I think Kagan in her questioning today laid out an approach that a dissent is likely to take or at least rhetorically going to take that you gutted the Voting Rights Act in Section 5 in Shelby County. You did the same thing in Brnovich  last year, and now, you're doing it again here and all of these election related cases particularly involving efforts to protect minority voting rights are being hacked to death by this conservative court. I think that's going to the be the rhetoric that starts with -- if it's a dissent like you said. It could well be the majority opinion, but it's what the liberal wing of the court is going to push, and I think that that's going to be consistent, certainly, with the political attacks on the court that we have seen recently.


David Warrington:  And that was the thrust of Justice Kagan's questioning as distinct from where Justice Jackson went and where Justice Sotomayor was going. So, yeah, that's a point well-taken.


Was there anything else that struck you? What struck me was Justice Jackson's argument about the meanings and history of the Fourteenth and Fifteenth Amendment, maybe struck me so hard that maybe I missed something else. But was there anything else that stood out for you?


Michael Dimino:  Sort of by its absence, one of the -- when I consider the Constitution and the constitutionality of Section 2, ever since the results test was put into Section 2, it's been an uneasy fit with the Fifteenth Amendment. That is, we're going to write -- the constitutional standard still is that you're not violating the Constitution unless you intentionally discriminate against a racial group. And Congress decides that we are going to enforce that prohibition by not only making it illegal intentionally to discriminate against a minority group but to impose any kind of electoral practice that has the effect of giving this racial minority group a reduced ability to impact the political process.


      And so the scope of Section 5 of the Fourteenth Amendment or the scope of Section 2 of the Fifteenth Amendment was -- I don’t even know if it was mentioned at all. It certainly was not a major focus of this case, and I didn't expect it to be the focus because it would be a step quite far, if not a step too far, but I expected it to get a little more attention than it did. That the interpretation of Section 2 brought about after the amendment to add the results test, brings it in potential conflict with City of Boerne v. Flores and those other cases that place a limit on Congress's ability to expand constitutional rights under the guise of enforcing constitutional rights.


David Warrington:  Knowing that the affirmative action cases are coming up next month, how do you -- is there anything we can glean, other than the Justice Jackson sort of arguments, is there anything we can glean from today's argument that is probably going to show up again?


Michael Dimino:  Well, I -- that's a fascinating question too. When I saw that both of these cases had been granted cert and that they were going to be heard in the same term, I had thought boy, there is a possibility that the Court could take a really clear stand and say that the Constitution outlaws consideration of race in both contexts, to just say that districting needs to be done without consideration of race or even if that's not realistic, at least to say something fairly clear to limit the amount of consideration of race that would be constitutional and then say something comparable in the affirmative action cases to say that it would be unconstitutional to consider race, more or less at all, in admissions at state universities and for state hiring decisions and that kind of thing.


      Given that that wasn't where the discussion today was, I'm not sure that we're likely to get as much of a full-throated, clear, no consideration of race rule out of the affirmative action cases. And if the Court -- it may or may not play out that kind of way. You can certainly draw a distinction between the two and say, as the Court has until this point, that people who draw district lines, of course, they're aware of race. If you say that they can't consider race, you're just being pollyannaish. You're being a fool. Courts are going to consider race. The only question is how much they're going to consider race. Whereas, in the more typical affirmative action contexts of school admissions and hiring decisions, it is plausible to create a rule that says you have to make those decisions on a race-blind kind of approach.


      So maybe the Court will go that kind of direction, but I think the chances that the Court would completely outlaw consideration of race, I think that's, to the extent it ever was a real consideration or possibility, I think it's less of one now.


David Warrington:  What did you make of -- I think it was Justice Sotomayor's, I guess, lack of credence that she gave to Alabama's argument about the geography when they were talking about the black belt that seems to make sense. You've got a river. You've got a couple bodies of water that separate areas when you're talking about communities of interest and geographic compactness. Physical boundaries have always been something that have been considered in the analysis, but she really didn't give that much credence.


Michael Dimino:  Yeah. I agree with that. Now, that does, I suppose, have the advantage of clarity that we know where Justice Sotomayor stands on those kinds of issues. For her, race must predominate. The Voting Rights Act requires that you draw districts to protect these racial interests whenever it's possible to draw a district that includes a majority of members of the minority group, whether you cross a river or mountain range or whatever, doesn’t really care. And that's also nothing all that new.


Even in Reynolds v. Sims back in the mid-60's, the Court has this funny line about how now that we're in modern times and we have these communications technologies that allow us to cross rivers, that we don't have to worry about those natural boundaries as much anymore. I think it's fairly clear that Sotomayor would look at that as an excuse, that Alabama is glomming on to a river or a mountain as a neutral sounding reason for not providing blacks with adequate voting rights.


And she more or less said that explicitly in her discussion of Alabama's justification of communities of interest when Alabama said that we don't want to break up the community around the Gulf Coast region. We don't want to break up the current District 1 and District 2 in order to split them and form this new wide band of a new District 2. Sotomayor basically said you can say it stems from a French and Spanish ancestry over hundreds of years, but she pretty much scoffed at that explanation or said that it was a way of doing racial discrimination without coming out and saying it.


David Warrington:  And they also, I think it was Justice Sotomayor and Justice Kagan, when Alabama, the Solicitor General, pointed out that look, their map had some relation to the pre-existing districts and that that is one of the traditional districting principles that's considered. They glossed right over that, seemed to ignore that. And I think that's kind of the same, as you mentioned, how they ignored the geographic issues. They treated it the same way, which leads to the inescapable conclusion that the argument from their perspective is really race has to be a controlling factor in the analysis that they would put forth.


Michael Dimino:  I want to bring up in related to this discussion too, Professor Blumstein's comment in the question and answer. He says if Section 2 is a test for race discrimination rather than as a prophylactic for the purpose of discovering race discrimination, does Section 2 fall outside the congressional enforcement power under Boerne given the constitutional test of purposeful discrimination in Bolden and Shaw v. Reno?


      I don't think so. I think that Boerne says that the congruence and proportionality test tries to determine whether the congressional statute is congruent and proportional to the scope of the constitutional right as the Court interprets that constitutional right and wouldn't let Congress use Section 2 as a test for purposeful discrimination. But it does seem to be where Justice Jackson's coming from. Several of Justice Jackson's comments seemed to indicate that she views Section 2 as a test for racial discrimination rather than as just some Professor says as a prophylactic means of discovering when there might be race discrimination somewhere lurking in the background. So my answer is no, but I think that that would not universally be accepted at the Supreme Court.


David Warrington:  Yeah, I think that -- I don't have anything to add to that. I think that's where Justice Jackson sort of out over the surfboard a little bit.


Michael Dimino:  The last question on the -- so far, the last question on the question-and-answer is could a legislature decline to establish districts but require at large elections for the U.S. House? The answer to that question is yes, as a constitutional matter, but not as a statutory matter because there is a federal statute requiring that congressional districts be single member districts.


And under the Constitution, the States have the first responsibility for deciding the times, places, and manner of congressional elections, but those are subject to Congress making or amending any such laws. And Congress has decided that all districts are going to be single member. So unless you're Rhode Island or Delaware or one of those states that only has one member of the House of Representatives, you have to have single member districts.


David Warrington:  And do we have any other questions? Let's see.


Michael Dimino:  Ryan, is there anything that came your way that you particularly want to raise?


Ryan Lacey:  I think you covered a lot of it. The big question I had is what this predicted for SFFA v. Harvard which went into Mike, and I was curious why you thought Gorsuch was so silent during the arguments today.


Michael Dimino:  I was -- I don't know. I suspect that he just knew what his answer was going to be and didn't think that it was going to be all that -- for the same reason that Justice Thomas is somebody silent. I'm not going to take up other peoples' time trying to convince the other members of the Court when I know what I already think about the case. But I don't know whether that's true.


Gorsuch was quite an active questioner in the case on the meaning of Title 7, a sex discrimination case as including sexual orientation and transgender discrimination. And so his -- a noteworthy case where he interpreted a statute passed in the same era as the Voting Rights Act was passed. And so I don't -- I was kind of surprised that he didn't follow suit there and was an active questioner.


I don't know that it says anything, but I kind of suspect that it means that we probably don't have a big surprise coming from him. I think that if he were thinking something unexpected that I would've expected to hear more from him in oral argument, but that's just my seat of the pants kind of thought. I don't know that it has any reflection of what he's actually thinking.


Ryan Lacey:  David?


David Warrington:  I don't either. I mean, sometimes they're sphinx-like and the silence, you can read it either way. So I don't know. I was surprised that he didn't ask any -- I don’t think he asked a single question, did he?


Michael Dimino:  I didn't hear him at all.


David Warrington:  Yeah.


Ryan Lacey:  And with this being Justice Jackson's second day on the Court, what do you predict for her tenure on the Court so far based on the two brief days that she's been active?


David Warrington:  Well, as I mentioned before, I was struck by her forceful argument for the interpretation that she put forward for the Fourteenth and Fifteenth Amendments and how that should apply in this case. And if that holds true, I think she's going to be quite active in arguing from the more liberal side of the Court for a completely different reading than what has been coming out of the conservative wing on the Court.


      So I think she's going to be a very active and very vocal justice. In the second day, yesterday, she was very active in questioning. And today, she was -- I think Justice Thomas asked one question and then she took over. So she's very active.


Michael Dimino:  I think it'll be interesting to see how the rest of the Court reacts to that, if she does continue with that technique, whether the conservative wing on the Court will feel compelled to speak up too or whether some effort will be made to say that -- well, like during the pandemic, that everybody gets two minutes or five minutes or however much it was, and we're just going to rotate through the bench.


      Justice Scalia, when he joined the Court in '86 got some of the same kind of write ups about him, that he was coming from the D.C. Circuit, like Justice Jackson is coming from the D.C. Circuit, had a very active approach to oral argument that fit his personality. And some of the members of the Court didn't appreciate it. I think it was Justice Blackman who made some kind of remark about how back in my day, we sat and respected the people who had been here for a few years before we became as active as Justice Scalia was.


      And I always thought that was kind of a bit fussy. There wasn't much of a need for that kind of deference. So in that respect, I'm pleased that Justice Jackson is jumping right in to be an active questioner. It certainly is helpful to court observers and I imagine to advocates to know where she's coming from. And we don't have to guess about her position like we have to guess about Gorsuch because their approaches were so different. But I think it will be really fascinating to see whether she maintains that kind of attitude in the future or how her behavior on the bench changes if this term goes on and her tenure on the Court goes on.


David Warrington:  And if I recall correctly, Justice Sotomayor was pretty active very early on in her tenure as well. So --


Michael Dimino:  I think it's a generational kind of shift that the -- Justice Blackman joins the Court in 1969 or '70. I just think it's a completely different era from the 80s and certainly from now that justices might decide like Justice Thomas not to say much during oral argument at all, but I don't think many new appointees are going to exhibit a kind of I better not speak up and I better defer to the people who have been on the Court for 10 years when I'm just starting out. I just don't think that that's an attitude that's likely to be reflected by more of the appointees in this current generation.


David Warrington:  And despite his silence today, I know there was some criticism of Justice Gorsuch early in his tenure for his active participation.


Michael Dimino:  Yeah.


David Warrington:  I think you're right on that.


Michael Dimino:  Yeah. Right.


Ryan Lacey:  Well, a couple minutes left. Do either of you have any closing thoughts before we wrap up?


David Warrington:  As always, watching the Court do its work is fascinating. I was also struck by how Covid has actually changed the way oral arguments are conducted. Seems to me that it's much more of a -- when they were doing the remote arguments where they were going in order and asking the justices if they have any questions, Justice Roberts has continued to do that even though it's no longer Covid rules. So I thought that was just, from a court observer perspective, interesting how that has baked its way into oral argument today or now. And the fact that counsel can actually get their opening argument out, whereas before getting bombarded with questions. That seems to be a little bit of a different approach to the conduct of oral arguments.


Michael Dimino:  And I just want to thank David and you, Ryan, and The Federalist Society and all the attendees for the opportunity to take part in this. It's been an honor and a pleasure. Thank you.


David Warrington:  Thank you.


Ryan Lacey:  Well, on behalf of The Federalist Society, I would like to thank our speakers for the benefit of their valuable time and expertise today. And I'd like to thank our audience for joining us and participating, particularly with your questions. We welcome listener feedback at email at [email protected], and as always, keep an eye on our website and your emails for information and announcements about upcoming webinars and programming. Thank you all for joining us today. We are adjourned.





Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at