It took me several day to get through the transcript of this case so I could do this writeup not because the basic legal premise is so hard (it's actually relatively straight forward to understand conceptually, while being devilishly difficult to actually apply) but rather because this argument annoyed me so very much. As I will discuss in the writeup, this was less an oral argument and more an exercise in judicial overreach and bickering. Enough of my whining about how much I didn't enjoy the arguments, however ... it's time for me to summarize the issues as best as I can!
This case is about gerrymandering - that wonderful process whereby legislators pick their voters. What could be more democratic than that!?! The issue of gerrymandering has been much discussed, but the cold hard truth is that the process that leads to gerrymandering - redistricting, and more basically the drawing of political boundaries at all - is not one that has easy or obvious answers for how it should best be done. I could write an article about drawing district lines that stretched for many pages discussing the challenges involved, but that would take us away from the task at hand of summarizing this argument so I'll just say - it isn't necessarily easy, and there are a lot of thoughts and feelings about what is acceptable - and what is unacceptable - when you're going through the line drawing process.
The question presented in this case is ... extensive. And you will probably be able to tell from the way it is written that the NAACP, which won the first round of this case with a finding that South Carolina illegally used a racial gerrymander in drawing its First District, has a tough hill to climb in holding on to its victory after Supreme Court review. Here is the six-pronged (!!!) question presented in this case: "(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent; (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case; (3) whether the district court erred when it failed to disentangle race from politics; (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles; (5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and (6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect."
Now, let's start with a couple of procedural things of interest ... starting with the court below. In most Supreme Court cases, a case is appealed either from a state supreme court, or from a federal court of appeals. However, Congress has the power to set different rules for certain kinds of cases if it so desires, and when it comes to reapportionment cases it has done just that. When the constitutionality of reapportionment is in question, instead of a case being heard in the US District Court of appropriate jurisdiction by a single trial judge, with appear to the appropriate Court of Appeals, the case is instead assigned to a three judge panel of district court judges. Any appeal then goes directly to the Supreme Court rather than to an federal court of appeals. Second, you see the phrase "whether the district court erred" at the start of each of the questions presented above - with one exception where it states "where the district court clearly erred" (number 5). This actually is an important distinction. When an appellate court is reviewing legal questions, it does so with what is called a de novo standard of review - in other words, it looks at the question with no deference to what the lower court decided, as if it is hearing it "new." This is because appellate courts are there to consider questions of law, primarily, and as the higher court they don't really care what a lower court thought about legal questions - they have priority and will decide those questions independent of the decision in the court below.
Alternatively, questions of fact are decided using a standard of "clear error." This means that a lower court has to have made a factual determination that is not plausible in order to be overturned. This is a very high level of deference, but it exists for a reason - it is the lower court that is observing the witnesses testify and that is engaging directly with a trial. They are in the best position to weigh the validity of contests about factual questions - whereas an appellate court has only briefings and a lower court decision to go off of. They were not there to observe witness behavior or judge credibility. As a result, unless the record shows that the court relied made a factual ruling that is implausible based on the record, the appellate court must accept that factual ruling - even if the appellate court's members would have made a different factual finding had they been hearing the case themselves. This is a very deferential standard.
Now, in looking at what happened in South Carolina, we can understand the basic issue by grossly summarizing the background instead of going through a huge amount of detail. In carrying out redistricting, the state first used a "baseline map" that closely mirrored the previous apportionment. The legislature then tweaked the lines to accomplish a variety of goals. One of the goals in the first congressional district was to strengthen the Republican lean of the district by just a bit to avoid it becoming seriously vulnerable to a democratic candidate. In doing so, the state had solid partisan data on just one election - the 2020 presidential election - as that was the first election for which absentee voting information could be tracked back to the precinct level. Prior elections it could only be tracked back to the county level, which is not fine-grained enough to do micro-targeting of particular voters for gerrymandering purposes. After numerous tweaks, the Republican majority felt that they had accomplished their goal of bolstering the Republican lean of the district ... but the NAACP alleged that to do so, the state impermissibly relied on race as a proxy for voting intentions, and predominantly relied on racial data - not partisan data - in drawing their map, in violation of federal law.
Now, let's walk through the questions presented in this case, starting with (1) failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent. The argument here is that a lower court is supposed to assume that a state legislature is acting in good faith in accordance with its stated intentions. The stated intentions here from the South Carolina legislature was that it was seeking to shore up the Republican lean of District 1. That kind of partisan gerrymandering is perfectly legal - the Court stated in Rucho v. Common Cause that unless the partisan gerrymandering was "extreme" - whatever that means - that partisan gerrymandering is nonjusticiable. The people have to remedy it themselves through voting if they don't like it (I strongly disagree with this decision, but that's a tale for another time). The question here, then, is whether the district court failed to apply the legal rule of presuming good faith on the part of the legislature. The problem is, while this is ostensibly a legal question, it relies heavily on a factual review of the record ... and it was very clear in the way the questions were asked that the Conservatives on the Court and the "More Left" members of the Court (there aren't really many true liberals on the Court these days) completely disagree on the question of whether the lower court demonstrated that deference in its ruling.
The second part of the question got a LOT of discussion - as a reminder, it was: (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case. Interestingly, the very question here seems poorly written because there is no such thing as an "alternative-map requirement" anywhere in the caselaw. An alternative map is a potentially very useful piece of evidence in a gerrymandering case because it can help establish that a legislature's stated goal could have been accomplished with alternative district lines. In a situation like this one where race was very closely mixed in with the moves that were made (because race and partisan affiliation are so closely related in most cases), being able to demonstrate that South Carolina could have met its goal of shoring up the Republican strength of the district without diluting black voting strength would have been a powerful piece of evidence for the NAACP, but they didn't have an alternative map to present. The state of South Carolina viewed this as a fatal flaw, referring to an "alternative-map requirement" for a case such as this one - and again, that wording made it into the Question Presented - but it was established fairly clearly in argument - with the help of most all of the left-leaning Justices - Sotomayor, Kagan, and Jackson - that there is no requirement at all for this. The idea that race was impermissibly used in drawing the enacted map could be established in other ways, with other evidence. Despite this, the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh all seemed to be very interested in pointing out that there was no alternative map and further, that an alternative map should have been easy to produce and would have been very useful as evidence. This back and forth between the Justices was frustrating because Justices on both sides were clearly acting as advocates and not judges throughout this part of the discussion.
Item 3 on the list was whether the district court erred in "failing to disentangle race from politics." The idea that this is one element of the Question Presented is kind of crazy, because this is basically the entire case. However, to the extent that there was an error on the part of the district court, the argument is that the court did not recognize that merely acknowledging race, or being aware of race, does not mean that race predominated in the drawing of the lines. There were questions asked related to this question from the standpoint of whether merely using race as a proxy for partisan preference would be enough to invalidate a redistricting effort - something the justices on the left all were pretty insistent would be forbidden. The justices on the right didn't really lean into the question too much - instead they tried to demonstrate through their questioning that race wasn't the dominant factor and was just incidentally wrapped up in the perfectly constitutional partisan gerrymandering because of the close correlation between the two factors.
The fourth part of the question presented also goes to the sufficiency of the district court's analysis: (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles. There is not really a "right" way to divide a state into legislative districts - there are a near infinite number of possible way so to do it, and some of them would be objectively quite "wrong" ... but there are multiple ways that could be "right" depending on your goals and your principles. To help establish which of these are better than others, the courts have generally accepted three principle (there are actually more but three are commonly discussed) that they seek to uphold to the extent possible. The first is "contiguity" - in other words, no districts that are made up of islands surrounded by other districts. Second, districts are better if they are "compact." There's no solid definition of this, but generally a district is compact if it doesn't look like an amoeba, with arms and tendrils reaching out to encompass far reaching enclaves. The cleaner the distract lines, the closer every edge is to the average distance to the center of the distract, the more compact the district is. Third, protecting communities of interest is a goal. Trying to preserve county lines, for instance. Or, occasionally keeping communities along a river that share similar interests might cause a map to be a little less compact than normally desired, but keeping similar communities of interest together could justify that map. Essentially, the conservative justices (and the state) believe that that district court didn't do any analysis to see if there were reasons that aligned with traditional districting principles - they just leaped into a race vs. partisan divide analysis. The conservatives view this as a failing, while the left views this as something that was done sort of inherently in the experts analysis by default. The two sides talked past each other regularly.
I'm not going to go into an individual discussion of 5 and 6 because we essentially already considered those in looking at the other questions presented. They're just more sides of the same coin.
What all this boils down to is that the right thinks the district court came to a conclusion that race infected this process without a proper chain of evidence and without considering all of the things that it should have considered. The left thinks that the determination of what evidence was convincing, and what experts were convincing, should be left to the distract court since it was a trier of fact and that the appellate court, even if it disagrees with the rulings of the lower court, has no business overturning those findings unless they were completely implausible - something that in the view of Sotomayor, Kagan, and Jackson, cannot be shown.
As I mentioned, this case was frustrating because the Justices were clearly acting as advocates. Justice Alito spoke 45 times during this argument, far more than any other Justice, and at one point consumed 10 whole pages of the 135 page transcript in a colloquy with the lawyer for the NAACP that read more like Alito was a prosecutor questioning a hostile witness. Justice Kagan was equally direct (although blessedly less lengthy) when she jumped in. Justice Jackson lectured through her questions. Chief Justice Roberts expressed his disbelief that this case should even have been brought repeatedly by emphasizing several main points - all of this was being done over a black voting age population that differed by just 1.3% between maps; there was no alternative map showing race and partisanship could be disentagled; there were no oddly shaped districts; there was no overt evidence of discrimination. They seemed to care very little about what the lawyers actually said and much more about trying to drive home their particular views of the case.
In the end, I think this is going to end up as a 6-3 case overturning the NAACP's lower court win and declaring that the South Carolina map is fine. I'm more worried about what a muddle this could make of clear error analysis. Justice Jackson was correct during this case when she said that many of the questions seemed to be reviewing factual findings on a de novo basis (as if the lower court had no role in fact finding at all), which is the least deferential standard to apply, instead of using clear error analysis, which is the most deferential to the judgment of the court below. The questions were very much in the weeds and very focused on why some evidence wasn't presented or why certain witnesses weren't credible, and a lot of that seemed to go to questions of credibility and truthfulness ... qualities that the trial court should be given broad latitude to decide given their privileged position of being able to see the witnesses and actively participate in the trial. Depending on how the Court rules in this case, it could make a great muddle over what clear error analysis is and how it is supposed to be conducted, all because the six justice majority seems clearly to intend to make it much more difficult to demonstrate that race played a prominent role in a redistricting decision. If this is written by Alito or Thomas, look for a wildly bad decision that breaks ground in a lot of horrible ways. I suspect, thankfully, that Chief Justice Roberts will write this instead - and while I will be annoyed by the certitude with which he answers the six questions presented, I can at least hope his usual clear writing and his desire to keep the judicial branch and its rules tidy and understandable will rule out over his desire to sarcastically belittle the case.
This case is about gerrymandering - that wonderful process whereby legislators pick their voters. What could be more democratic than that!?! The issue of gerrymandering has been much discussed, but the cold hard truth is that the process that leads to gerrymandering - redistricting, and more basically the drawing of political boundaries at all - is not one that has easy or obvious answers for how it should best be done. I could write an article about drawing district lines that stretched for many pages discussing the challenges involved, but that would take us away from the task at hand of summarizing this argument so I'll just say - it isn't necessarily easy, and there are a lot of thoughts and feelings about what is acceptable - and what is unacceptable - when you're going through the line drawing process.
The question presented in this case is ... extensive. And you will probably be able to tell from the way it is written that the NAACP, which won the first round of this case with a finding that South Carolina illegally used a racial gerrymander in drawing its First District, has a tough hill to climb in holding on to its victory after Supreme Court review. Here is the six-pronged (!!!) question presented in this case: "(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent; (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case; (3) whether the district court erred when it failed to disentangle race from politics; (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles; (5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and (6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect."
Now, let's start with a couple of procedural things of interest ... starting with the court below. In most Supreme Court cases, a case is appealed either from a state supreme court, or from a federal court of appeals. However, Congress has the power to set different rules for certain kinds of cases if it so desires, and when it comes to reapportionment cases it has done just that. When the constitutionality of reapportionment is in question, instead of a case being heard in the US District Court of appropriate jurisdiction by a single trial judge, with appear to the appropriate Court of Appeals, the case is instead assigned to a three judge panel of district court judges. Any appeal then goes directly to the Supreme Court rather than to an federal court of appeals. Second, you see the phrase "whether the district court erred" at the start of each of the questions presented above - with one exception where it states "where the district court clearly erred" (number 5). This actually is an important distinction. When an appellate court is reviewing legal questions, it does so with what is called a de novo standard of review - in other words, it looks at the question with no deference to what the lower court decided, as if it is hearing it "new." This is because appellate courts are there to consider questions of law, primarily, and as the higher court they don't really care what a lower court thought about legal questions - they have priority and will decide those questions independent of the decision in the court below.
Alternatively, questions of fact are decided using a standard of "clear error." This means that a lower court has to have made a factual determination that is not plausible in order to be overturned. This is a very high level of deference, but it exists for a reason - it is the lower court that is observing the witnesses testify and that is engaging directly with a trial. They are in the best position to weigh the validity of contests about factual questions - whereas an appellate court has only briefings and a lower court decision to go off of. They were not there to observe witness behavior or judge credibility. As a result, unless the record shows that the court relied made a factual ruling that is implausible based on the record, the appellate court must accept that factual ruling - even if the appellate court's members would have made a different factual finding had they been hearing the case themselves. This is a very deferential standard.
Now, in looking at what happened in South Carolina, we can understand the basic issue by grossly summarizing the background instead of going through a huge amount of detail. In carrying out redistricting, the state first used a "baseline map" that closely mirrored the previous apportionment. The legislature then tweaked the lines to accomplish a variety of goals. One of the goals in the first congressional district was to strengthen the Republican lean of the district by just a bit to avoid it becoming seriously vulnerable to a democratic candidate. In doing so, the state had solid partisan data on just one election - the 2020 presidential election - as that was the first election for which absentee voting information could be tracked back to the precinct level. Prior elections it could only be tracked back to the county level, which is not fine-grained enough to do micro-targeting of particular voters for gerrymandering purposes. After numerous tweaks, the Republican majority felt that they had accomplished their goal of bolstering the Republican lean of the district ... but the NAACP alleged that to do so, the state impermissibly relied on race as a proxy for voting intentions, and predominantly relied on racial data - not partisan data - in drawing their map, in violation of federal law.
Now, let's walk through the questions presented in this case, starting with (1) failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent. The argument here is that a lower court is supposed to assume that a state legislature is acting in good faith in accordance with its stated intentions. The stated intentions here from the South Carolina legislature was that it was seeking to shore up the Republican lean of District 1. That kind of partisan gerrymandering is perfectly legal - the Court stated in Rucho v. Common Cause that unless the partisan gerrymandering was "extreme" - whatever that means - that partisan gerrymandering is nonjusticiable. The people have to remedy it themselves through voting if they don't like it (I strongly disagree with this decision, but that's a tale for another time). The question here, then, is whether the district court failed to apply the legal rule of presuming good faith on the part of the legislature. The problem is, while this is ostensibly a legal question, it relies heavily on a factual review of the record ... and it was very clear in the way the questions were asked that the Conservatives on the Court and the "More Left" members of the Court (there aren't really many true liberals on the Court these days) completely disagree on the question of whether the lower court demonstrated that deference in its ruling.
The second part of the question got a LOT of discussion - as a reminder, it was: (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case. Interestingly, the very question here seems poorly written because there is no such thing as an "alternative-map requirement" anywhere in the caselaw. An alternative map is a potentially very useful piece of evidence in a gerrymandering case because it can help establish that a legislature's stated goal could have been accomplished with alternative district lines. In a situation like this one where race was very closely mixed in with the moves that were made (because race and partisan affiliation are so closely related in most cases), being able to demonstrate that South Carolina could have met its goal of shoring up the Republican strength of the district without diluting black voting strength would have been a powerful piece of evidence for the NAACP, but they didn't have an alternative map to present. The state of South Carolina viewed this as a fatal flaw, referring to an "alternative-map requirement" for a case such as this one - and again, that wording made it into the Question Presented - but it was established fairly clearly in argument - with the help of most all of the left-leaning Justices - Sotomayor, Kagan, and Jackson - that there is no requirement at all for this. The idea that race was impermissibly used in drawing the enacted map could be established in other ways, with other evidence. Despite this, the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh all seemed to be very interested in pointing out that there was no alternative map and further, that an alternative map should have been easy to produce and would have been very useful as evidence. This back and forth between the Justices was frustrating because Justices on both sides were clearly acting as advocates and not judges throughout this part of the discussion.
Item 3 on the list was whether the district court erred in "failing to disentangle race from politics." The idea that this is one element of the Question Presented is kind of crazy, because this is basically the entire case. However, to the extent that there was an error on the part of the district court, the argument is that the court did not recognize that merely acknowledging race, or being aware of race, does not mean that race predominated in the drawing of the lines. There were questions asked related to this question from the standpoint of whether merely using race as a proxy for partisan preference would be enough to invalidate a redistricting effort - something the justices on the left all were pretty insistent would be forbidden. The justices on the right didn't really lean into the question too much - instead they tried to demonstrate through their questioning that race wasn't the dominant factor and was just incidentally wrapped up in the perfectly constitutional partisan gerrymandering because of the close correlation between the two factors.
The fourth part of the question presented also goes to the sufficiency of the district court's analysis: (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles. There is not really a "right" way to divide a state into legislative districts - there are a near infinite number of possible way so to do it, and some of them would be objectively quite "wrong" ... but there are multiple ways that could be "right" depending on your goals and your principles. To help establish which of these are better than others, the courts have generally accepted three principle (there are actually more but three are commonly discussed) that they seek to uphold to the extent possible. The first is "contiguity" - in other words, no districts that are made up of islands surrounded by other districts. Second, districts are better if they are "compact." There's no solid definition of this, but generally a district is compact if it doesn't look like an amoeba, with arms and tendrils reaching out to encompass far reaching enclaves. The cleaner the distract lines, the closer every edge is to the average distance to the center of the distract, the more compact the district is. Third, protecting communities of interest is a goal. Trying to preserve county lines, for instance. Or, occasionally keeping communities along a river that share similar interests might cause a map to be a little less compact than normally desired, but keeping similar communities of interest together could justify that map. Essentially, the conservative justices (and the state) believe that that district court didn't do any analysis to see if there were reasons that aligned with traditional districting principles - they just leaped into a race vs. partisan divide analysis. The conservatives view this as a failing, while the left views this as something that was done sort of inherently in the experts analysis by default. The two sides talked past each other regularly.
I'm not going to go into an individual discussion of 5 and 6 because we essentially already considered those in looking at the other questions presented. They're just more sides of the same coin.
What all this boils down to is that the right thinks the district court came to a conclusion that race infected this process without a proper chain of evidence and without considering all of the things that it should have considered. The left thinks that the determination of what evidence was convincing, and what experts were convincing, should be left to the distract court since it was a trier of fact and that the appellate court, even if it disagrees with the rulings of the lower court, has no business overturning those findings unless they were completely implausible - something that in the view of Sotomayor, Kagan, and Jackson, cannot be shown.
As I mentioned, this case was frustrating because the Justices were clearly acting as advocates. Justice Alito spoke 45 times during this argument, far more than any other Justice, and at one point consumed 10 whole pages of the 135 page transcript in a colloquy with the lawyer for the NAACP that read more like Alito was a prosecutor questioning a hostile witness. Justice Kagan was equally direct (although blessedly less lengthy) when she jumped in. Justice Jackson lectured through her questions. Chief Justice Roberts expressed his disbelief that this case should even have been brought repeatedly by emphasizing several main points - all of this was being done over a black voting age population that differed by just 1.3% between maps; there was no alternative map showing race and partisanship could be disentagled; there were no oddly shaped districts; there was no overt evidence of discrimination. They seemed to care very little about what the lawyers actually said and much more about trying to drive home their particular views of the case.
In the end, I think this is going to end up as a 6-3 case overturning the NAACP's lower court win and declaring that the South Carolina map is fine. I'm more worried about what a muddle this could make of clear error analysis. Justice Jackson was correct during this case when she said that many of the questions seemed to be reviewing factual findings on a de novo basis (as if the lower court had no role in fact finding at all), which is the least deferential standard to apply, instead of using clear error analysis, which is the most deferential to the judgment of the court below. The questions were very much in the weeds and very focused on why some evidence wasn't presented or why certain witnesses weren't credible, and a lot of that seemed to go to questions of credibility and truthfulness ... qualities that the trial court should be given broad latitude to decide given their privileged position of being able to see the witnesses and actively participate in the trial. Depending on how the Court rules in this case, it could make a great muddle over what clear error analysis is and how it is supposed to be conducted, all because the six justice majority seems clearly to intend to make it much more difficult to demonstrate that race played a prominent role in a redistricting decision. If this is written by Alito or Thomas, look for a wildly bad decision that breaks ground in a lot of horrible ways. I suspect, thankfully, that Chief Justice Roberts will write this instead - and while I will be annoyed by the certitude with which he answers the six questions presented, I can at least hope his usual clear writing and his desire to keep the judicial branch and its rules tidy and understandable will rule out over his desire to sarcastically belittle the case.
