Viewed in isolation, Monday’s Supreme Court argument in Virginia House of Delegates v. Bethune-Hill went very well for the Republican Party. The members of the court who spoke up during Monday’s argument looked likely to split along party lines — with the newly appointed Trump judge, Brett Kavanaugh, pushing hardest to uphold a racial gerrymander that all but ensures that Republicans will control Virginia’s lower house.
Yet there are two reasons why this initial impression may prove deceiving. The first is that the Supreme Court did not stay the lower court’s decision striking down Virginia’s state House map, allowing the lower court to produce new maps that give Democrats their first shot at winning a majority in that House in many years. If a majority of the Supreme Court intended to reverse the lower court, it is odd that they would allow the lower court to move forward with the process of drawing new maps.
The second reason why Virginia Republicans may not wind up with much to celebrate comes from an unusual source — Justice Clarence Thomas. Thomas, as is his ordinary practice, did not speak at all during Monday’s arguments on Bethune-Hill. Yet his past statements in this very same case suggest that he is quite hostile to Virginia’s gerrymandered map.
Democrats may soon win full control of the commonwealth of Virginia’s government, in other words, thanks to an unusual alliance between Thomas and the Supreme Court’s liberal wing.
Bethune-Hill involves 12 state legislative districts that were each drawn to ensure that at least 55 percent of the voting age population within these districts is black. The Republican-controlled House of Delegates, which is now defending the maps against the wishes of the state’s attorney general, claims that it needed to apply this 55 percent threshold to comply with the Voting Rights Act. When the maps were drawn, this act prevented states from drawing maps that show “retrogression” — that is, maps that diminish the number of districts in which racial minorities can “elect their preferred candidates of choice” relative to the previous map.
Though this rule against retrogression was in effect when the maps were drawn in 2011, it’s now largely defunct thanks to the Supreme Court’s 2013 decision deactivating much of the Voting Rights Act. That decision was on party lines, with Chief Justice John Roberts writing the majority opinion.
The Supreme Court’s first Bethune-Hill decision, which upheld one of the challenged districts and sent the rest down to the lower court for further review, held that courts must treat legislative maps as presumptively unconstitutional when the plaintiff shows that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” And there shouldn’t be much doubt that race predominated in the remaining eleven districts.
The evidence in this case suggests that Virginia’s mapmakers largely consulted with just one African-American member of the state house and determined that her district would need a black voting-age population of at least 55 percent to prevent retrogression. The 55 percent threshold “‘was then applied across the board to all twelve’ districts,” according to the Supreme Court’s first Bethune-Hill decision.
And yet, several Republican members of the high court seemed inclined to give the state’s gerrymander a pass.
Kavanaugh was the most outspoken defender of the gerrymander, claiming that “everyone agrees” that the state needed to have 12 majority-minority districts — and that if the state had chosen a lower threshold than 55 percent, African-Americans likely would have complained that those maps did not do enough to prevent retrogression.
That may very well be true, but it doesn’t change the fact that the Supreme Court’s first Bethune-Hill decision requires an individualized assessment of whether each district was drawn with too much attention to race. “A court faced with a racial gerrymandering claim,” Justice Anthony Kennedy wrote in that opinion, “must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the districtwide context.”
Chief Justice John Roberts and Justice Samuel Alito also appeared sympathetic to Virginia’s gerrymandered maps, although they played their cards a little closer to their chests than Kavanaugh. Roberts twice asked what his court should do with the fact that the lower court initially ruled in favor of the Virginia maps before the Supreme Court’s Bethune-Hill decision, then reached opposite assessments about which witnesses were credible after the Supreme Court ordered a new trial. Notably, one of the three members of the lower court panel that heard this case changed between the two trials.
Alito, meanwhile, seemed primarily concerned with a threshold question in this case — whether the House of Delegates is allowed to appeal the lower court’s order in the first place.
Virginia’s Democratic attorney general elected not to appeal the lower court order, and the Republican house is only allowed to appeal if it has “standing” to do so — that is, if it can show that it was either authorized by state law to represent the state or that it was somehow injured by the lower court’s order. While liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan all appeared skeptical that the House has standing in this case, Alito tried time and time again to rescue the House — at one point claiming that the House would be injured if the lower court’s order caused it to print different stationary for its new members.
Thomas was characteristically silent, and he was nearly matched by his frequent ally, Neil Gorsuch, who asked just one brief question. Yet, in a partial dissent in the first Bethune-Hill case, Thomas took a rigid position, suggesting that any consideration of race in redistricting may need to be struck down.
“To comply with [the fully operational Voting Rights Act, a State necessarily must make a deliberate and precise effort to sort its citizens on the basis of their race,” Thomas wrote in his first Bethune-Hill opinion. “But that result is fundamentally at odds with our ‘color-blind’ Constitution, which ‘neither knows nor tolerates classes among citizens.'”
Thomas’s opinion suggests, in other words, that Virginia could not apply a 55 percent threshold no matter what the circumstances. It strongly suggests that he will ultimately vote to strike down Virginia’s maps.
Should the court split 5-4 (or 6-3) with Thomas (and maybe Gorsuch) in a majority striking down the Virginia maps, that would be a stunning indictment of Roberts and Alito. Roberts is the author of the court’s decision nuking much of the Voting Rights Act, and he often calls for lawmakers to take a color-blind approach in other cases involving race. If Roberts abandons this color-blind worldview in a case that benefits the Republican Party, he risks undermining his own image as a justice who places the law above partisanship.
Alito, moreover, seemed sympathetic to Thomas’ views in the first Bethune-Hill decision, quoting favorably from Justice Antonin Scalia’s declaration that “when a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered.”
Based solely on Monday’s oral argument, however, Roberts and Alito seemed more open to the Virginia maps than their previously stated positions would suggest. The fate of one of the worst Republican gerrymanders in the country — a map that allowed Republicans to hold onto the Virginia House of Delegates even after Democrats won the statewide popular vote by more than nine points — could very well rest with Justice Thomas.