In re: Alexander v. South Carolina State Conference of the NAACP

You shouldn't be surprised as the Supreme Court takes up issues of race.

The Supreme Court’s Republican-appointed majority spent Wednesday morning seemingly hunting for a reason to uphold a South Carolina congressional map that everyone agrees was gerrymandered to benefit the Republican Party.

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Under the Supreme Court’s precedents, federal courts are not allowed to hear lawsuits challenging partisan gerrymanders — that is, maps drawn to benefit one political party or the other. But federal courts may hear challenges to racial gerrymanders — maps drawn to minimize the political power of voters of a particular race.

  Vox

Which is a GOP advantage in the first place, since it's practically a given that race is a major factor in partisanship.

A lower court struck down the South Carolina map because it determined that while the state’s GOP-controlled legislature’s goal was to shore up Republican control over the state’s First Congressional District, the legislature did so by excluding Black voters from this district.

In South Carolina, about 90 percent of Black voters prefer Democrats to Republicans. So mapmakers could be quite sure that they were making the First District more Republican every time they removed a Black voter from it.

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As the Supreme Court held in Cooper v. Harris (2017), “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”

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Appellate courts, including the Supreme Court, may correct a lower court that applies the wrong legal rule in a racial gerrymandering case. But the Supreme Court is supposed to defer to the trial court’s factual determinations regarding how and why a legislative map was drawn the way it was drawn.

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Justice Clarence Thomas [...] asked the very first question of John Gore, the former Trump administration lawyer defending South Carolina’s maps, and that question focused on the fact that the Court is supposed to “review this for clear error.”

But after Gore stepped away from the podium, all six of the Court’s Republican appointees appeared determined to find some way to uphold South Carolina’s gerrymander.

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For years, the Court’s GOP-appointed majority was uniquely hostile toward voting rights plaintiffs — often fabricating new legal rules from nothing in order to weaken laws protecting the right to vote.

In Shelby County v. Holder (2013), for example, the Court’s Republican appointees declared a key provision of the Voting Rights Act unconstitutional based on something called the “‘fundamental principle of equal sovereignty’ among the States” that cannot be found anywhere in the text of the Constitution. The GOP-appointed justices’ decision in Brnovich v. DNC (2021) simply made up a bunch of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, which also have no basis in any legal text.

Last June, however, the Supreme Court surprised pretty much everyone who follows voting rights litigation when it voted 5-4 to strike down a racially gerrymandered map in Alabama. The Court’s opinion in Allen v. Milligan, the Alabama case, was authored by Chief Justice John Roberts, and joined by Justice Brett Kavanaugh, along with the Court’s three Democratic appointees.

And we all cheered.

But while Milligan suggested that the Court may be turning away from its hostility to voting rights claims, Wednesday’s argument in Alexander suggests that Milligan could be a one-off.

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Justice Samuel Alito behaved like a lawyer for the Republican Party who was cross-examining a hostile witness.

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Though no justice was as aggressive an advocate for the Republican gerrymander as Alito, he was joined in his questions by Kavanaugh.

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Meanwhile, some other GOP-appointed justices suggested ways to change the law so that South Carolina will win.

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Roberts, meanwhile, complained that the lower court relied on “circumstantial evidence,” such as the fact that so many Black voters were moved out of the First District, and the fact that the state did not have reliable partisan voter data, rather than “direct evidence” such as a lawmaker’s admission that the maps were drawn with racist intent.

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[T]he biggest question in Alexander appears to be whether they should toss out the lower court’s factual findings, or whether they should announce a new legal rule that will permanently hobble all future plaintiffs’ ability to challenge racial gerrymanders.

...but hey, do what you want...you will anyway.