It was a relief last week that the Supreme Court, in rejecting Alabama’s congressional voting map as an illegal racial gerrymander, chose to enforce the Voting Rights Act rather than further erode it as it has done in several rulings over the past decade.
In holding that the map impermissibly diluted the voting power of Black Alabamians by cramming most of them in one district, the court — in a 5-4 ruling authored by Chief Justice John Roberts with Justice Brett Kavanaugh joining the majority — affirmed a lower court decision that had already deemed the map unlawful. There was, Roberts wrote, “no reason to disturb the district court’s careful factual findings.”
Advertisement
But the damage had already been done — and it was done by the Supreme Court itself. Back in 2022, after the district court ruled that Alabama state lawmakers should have drawn a second congressional map that would have better allowed Black voters to choose the candidates of their choice, the Supreme Court issued an order putting that ruling on hold and keeping the illegal map in place for the 2022 midterm elections, all as control of the House of Representatives hung in the balance.
At best, the voting rights of Black citizens were unprotected in one of the most pivotal congressional elections in recent memory. At worst, the Supreme Court, wittingly or not, put a thumb on the scale of the election’s outcome.
This can never happen again. It is imperative that the Supreme Court keep crucial civil rights matters like congressional apportionment off its “shadow docket” — which refers to the lists of interim orders the court makes in pending cases without full briefing or argument. Never again should voters be left wondering if the summary ruling of five or more justices in Washington took away their constitutional or statutory rights, without so much as an official opinion of the court’s majority explaining its reasons.
Advertisement
“There is a real danger in the growing use of the shadow docket, and this is a prime example,” former US Attorney General Eric Holder told the editorial board. Holder is founder of the National Democratic Redistricting Committee, which focuses on reforms to how legislative maps are drawn to stop gerrymandering and boost election fairness.
But for the shadow docket ruling, “the House might have been constituted with a Democratic majority,” Holder said. “But what we know for sure is that African Americans in Alabama were denied the right to pick the candidate of their choice as determined by a federal court” because they weren’t able to vote in fairly drawn districts, he said.
When the Supreme Court issued the order keeping the map in place for the midterms, Kavanaugh brushed off criticism from Justice Elena Kagan, who in a dissent excoriated the court for making such a ruling on the mere basis of “the scanty review this Court gives matters on its shadow docket.”
“The stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits,” Kavanaugh wrote, the emphasis his, in a concurrence accompanying the court’s order. That order, as is standard practice, was unsigned and lacking any written opinion by the majority laying out its rationale for keeping the map in place.
But the order had consequences beyond Alabama. In at least three other states where courts had deemed congressional maps to have been unlawfully drawn — Ohio, Louisiana, and Georgia — the Supreme Court’s shadowy ruling had the effect of allowing those racially gerrymandered maps to stay in place for the midterms.
Advertisement
The shadow docket may be useful to allow the court to make important determinations about a case before it’s ultimate conclusion, including issuing stays in order to protect the rights of litigants while matters are pending. But it can never be a place where the rights of American voters are imperiled. In this case, even if the court’s ultimate ruling is to be applauded, the court should be ashamed of how it got there and rein in its shadow docket once and for all.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
