SCOTUS Watch: More Alito

Thursday was Opinion Day. Alito had two opinions, the first two from him for the term. Jackson had the third.

Where parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs. 

Jackson wrote another of a series of short opinions, many of them unanimous, at times (as here) with a brief concurrence (Gorsuch).  The whole thing, with headnotes and concurrence, was twelve pages. I am not totally sure why an opinion so short, in a case argued at the end of February, took nearly three months to be handed down.  

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules. 

Alito's second opinion involved the application of the Armed Career Criminal Act (ACCA), which has led to multiple disputes over the years. Jackson had the dissent, which Kagan and Gorsuch (who often supports limits on federal power) joined, Gorsuch not joining a portion that discussed congressional purpose. Jackson's voice continues to be heard. 

Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States.

Rick Hasen summarizes Alito's first opinion of the term, which involves a racial gerrymandering claim out of South Carolina. You do not want Alito to write that opinion. As Hasen explains, Alito yet again found a way to find clear error, which is rare when examining a lower court's findings, that conveniently helped a certain political side. He also acted all aggrieved that a state was alleged to be racist. How rude! 

The majority not only reaffirmed that federal courts should keep out of partisan gerrymandering disputes (so it was convenient that this was deemed to be a case of partisan gerrymandering) but made it harder to find racially discriminatory gerrymandering. 

Thomas concurred to go further and supported doing away with the courts being involved much at all. He also didn't go along with all of Alito's fact-focused / error correction approach. Yes, Thomas is only one justice, but he is quite influential. And, after thirty years on the bench, his law clerks and followers are currently as well, including on the federal bench. 

Kagan wrote the dissent. Kagan is the go-to for strong political process dissents, now assigned in these cases by Sotomayor instead of Breyer or Ginsburg. The dissent also leads to wider debates over how best to allot our representatives, including multi-member districts, ranked choice, and so on.  Addressing racism and other constitutional problems would remain. 

The result is a mix of factual and constitutional analysis. A notable thing is that the opinion firmly granted partisan gerrymandering was not only a "political question" for the federal courts to not decide (which Kagan and Sotomayor firmly opposed at the time) but is constitutionally appropriate (another matter). 

These questions will be left to a new Court or (unlikely for some time) a constitutional amendment (such as the one promoted by Rick Hasen's new book). Nonetheless, legislation can help. The Burger Court provided a restrictive application of civil rights law, including voting rights, and Congress amended the law. President Biden counseled the same:

South Carolinians and people across America deserve to have their voices heard and their votes counted. President Biden and I will continue fighting to protect Americans from discrimination at the ballot box, and we once again urge Congress to pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act.

More opinions next Thursday. Order List on Tuesday. There is an execution scheduled. November elections are less than a half year away. And, maybe more flag news soon? 

(Of course, the answer is "yes.")

ETA: Kagan references in her dissent that Alito's argument was "upside-down," which some thought was a subtweet to the flag controversy. 

I think that is probably too cute. The flag news was recent. The dissent was crafted over the last few months. And, the term is not so atypical that the only explanation is a rather "in your face" dig.