In a hearing Tuesday, the Supreme Court will again examine two of the most contested issues in American politics: how to make voting equal for minorities and how to draw fair election districts. In a second hearing, the Justices will examine military veterans’ right to disability benefits.
The Court will broadcast “live” the audio of these hearings (no video) on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt. The audio will also be available, under the title of the case, at c-span.org/supremecourt
First hearing Tuesday: Merrill v. Milligan, combined with Merrill v. Caster. The two cases have been joined for the hearing. Beginning at 10 a.m., the hearing is scheduled for 70 minutes.
Background: The Supreme Court under Chief Justice John G. Roberts, Jr., is now well known for its deep skepticism toward laws that seek to reform America’s political process. In several rulings going back to 2013, the Court has significantly narrowed the protections provided by the Voting Rights Act of 1965 – the broadest law Congress has ever passed to make voting fairer and more inclusive. Congress, now deeply polarized, has been unable to respond.
The most charitable explanation for the Roberts Court’s reaction to race, not only in elections cases but also in other areas of the law, is that it believes that race for too long has been a divisive force in society, and that race-conscious legal remedies themselves foster discrimination.
As a result of those rulings, only one section of the 1965 law – Section 2 – still has some capacity to give minority voters greater chances to elect candidates of their choice, especially when white voters tend to vote together and thus can overwhelm the minorities’ political choices. But conservative activists have been mounting increasingly strong challenges to Section 2, arguing that it puts too much emphasis on race and thus frustrates a perceived goal of a “colorblind” political community.
Indeed, some of those advocacy groups have urged the Court to use these new cases to declare that Section 2 should have no role, at all, in determining whether election districts are drawn in ways that diminish the voting power of minorities.
The Roberts Court has given no hint, so far, that it will even consider striking down Section 2 as unconstitutional, but it has shown dissatisfaction with the legal tests that the Court itself has previously fashioned for determining when Section 2 has been violated. These two cases will test its current sentiment, in a case from Alabama over the drawing of districts governing elections to the state’s seats in the U.S. House of Representatives.
More than one-quarter of the population of Alabama is black, and those voters are concentrated in one section of the state. For years, one of the state’s seven congressional districts has had a majority of black voters. The state legislature in 2021 drew new maps to reflect changes in population shown in the 2020 census, but kept just one of the districts with a black majority.
That plan was challenged, and two lower federal courts ruled that advocates for minority voters were very likely to be able to prove their claim that it would violate Section 2 if the state continued to have only one such district, and thus concluded that a second black-majority district probably would have to be drawn.
Section 2 forbids any voting practice or procedure that will “deny or abridge the right of any citizen of the United States to vote on account of race or color” – a provision that echoes the language of the Constitution’s Fifteenth Amendment (ratified in 1870). Section 2, though, is broader than the Fifteenth Amendment because the Amendment only forbids intentional race bias, while Congress has broadened Section 2 so that it forbids racial “results” that discriminate, even if bias was not intended.
One of the most significant rulings by the Court on how Section 2 is to be enforced came in a 1986 case, Thornburg v. Gingles. That laid down a three-part test for judging whether a voting measure treated minorities unequally in drawing election districts. A violation exists if (1) the minority proves that it is large enough and concentrated in an area so that it could have majority control if a district were created there, (2) the minority must show that its members tend to vote in much the same way (they are “politically cohesive”), but that (3) the white population usually votes as a bloc in districts with white minorities, thus submerging minority voters.
State legislatures have the first duty to draft the boundaries of election districts, for seats in Congress, too, but subject to challenge under federal laws such as Section 2 and the Constitution.
The state of Alabama took both cases to the Supreme Court, in an attempt to block the lower court rulings until it could appeal to the Justices. The Justices were so anxious to take on the case, apparently to reexamine that 1986 precedent, that they not only voted to block the lower courts’ preliminary rulings, but sped up the cases by granting review of both of them, even though there was as yet no final decision by either lower court. That meant that this year’s congressional elections in Alabama would be conducted based on the existing districts, only one of which has a black majority, and the Court’s review of those maps would go ahead in this term.
The Court acted so quickly that it was not clear, for several weeks, just what legal question the Court was planning to answer. It finally settled on a question that makes quite clear that the Court plans to decide itself whether the legislature’s 2021 plan does violate Section 2, without waiting for any further action in the lower courts.
This was another vivid example of the current Court’s increasing tendency to use what is called its “shadow docket” to take significant actions when it has only been asked to take preliminary or procedural steps in a case. The result often is still to make binding law, without the usual full consideration. Now that review has been granted, though, these cases will get the full treatment before a final ruling emerges.
The question posed by the Court: Does the Alabama map for the election of seven House of Representatives members discriminate against minority voters in violation of Section 2 of the 1965 Voting Rights Act?
Significance: The Roberts Court, and especially its dominant bloc of six conservative Justices, has made clear in recent years that it is prepared to make bold use of its powers (as it did especially in the term that ended last summer.). It has been called “fearless” in pursuing its conservative instincts, by a highly respected University of Chicago law professor, William Baude (who, by the way, invented the phrase “shadow docket”).
Chief Justice Roberts has already made clear that he has deep concerns about whether the 1986 precedent provides workable rules on enforcing Section 2. And conservative legal organizations, sensing that the Court’s majority is definitely on their side, are flooding the docket with friend-of-Court legal briefs urging vast changes in laws and casting aside precedents.
One such group, the Project on Fair Representation, for example, has asked the Court to rule in these cases that Section 2 should never be applied to judge the legality of an election districting plan. It also has argued in its brief that “race-conscious redistricting” itself is unconstitutional.
The state of Alabama’s appeal does not go quite that far, but does argue that, if a legislature follows the traditional principles on drawing new election districts, there should be no need to judge the racial impact.
Tomorrow’s hearing could provide the first dependable hints or clues on how broadly, or narrowly, the Court sees its task in these cases. Its record on voting rights laws in the past nine years suggests that it may be prepared to act very boldly.
The Biden Administration’s Justice Department has entered the case, on the side of the challengers to the Alabama maps, and one of its lawyers will take part in the hearing. Its legal brief fully supports the lower courts’ actions in questioning the validity of the Alabama congressional maps.
There is the usual array of many briefs by contending advocacy groups on all sides of this controversy.
Second hearing on Tuesday: Arellano v. McDonough, U.S. Secretary of Veterans Affairs. This one-hour hearing will begin as soon as the voting rights hearing has ended. (There is no lunch break.)
Background: In the legal world, deadlines are an important part of keeping order and making the system work. Because of that, missing a deadline can have serious consequences – unless such a misstep is forgiven. The law sometimes allows for forgiveness, by a process known to lawyers as “equitable tolling.” (In that phrase, the word “equitable” refers to the concept that courts have the authority to take steps to make a process fairer, out of justifiable sympathy for perhaps innocent mistakes. “Tolling” means suspending deadlines to achieve such fairness.)
This case was taken to the Supreme Court by a sympathetic figure, a Navy veteran who was discharged after suffering serious psychiatric disorders while on duty. He is thus entitled to disability pay. The law providing disability benefits for conditions that can be traced to military service requires that, within one year of discharge, the veteran must apply for the benefits.
In this case, Adolfo R. Arellano, was discharged after four years of service. The Veterans Affairs Department decided that he had been disabled by an accident aboard an aircraft carrier, which injured him and others, and killed several sailors. His discharge came in October 1981. However, he did not apply for disability benefits for 30 years, doing so with his brother’s help in 2011. He has claimed his psychiatric disorders accounted for that delay.
He asked for disability benefits back to his date of discharge in October 1981 or, alternatively, at least back to 1982 when his doctors determined that he was fully disabled. The VA awarded him benefits from the day he applied for them, but denied retroactive benefits because he had missed the one-year filing deadline.
His case went through the specialized courts handling veterans’ benefits, and it landed finally in a federal appeals court that is the exclusive appeals tribunal in veterans’ cases, the Court of Appeals for the Federal Circuit. It split evenly, 6 to 6, thus upholding the denial of retroactivity for his benefit claim. He then appealed to the Supreme Court, noting how important it is for veterans to have dependable knowledge of what their rights are.
The question before the Court: Does federal law governing veterans’ service-related disability benefits allow for forgiveness when a veteran misses the one-year deadline, after discharge, to claim those benefits?
Significance: The Biden Administration is defending the lower court result, arguing that Congress has spoken clearly that the one-year deadline is not subject to suspension for reasons of equity. Under that view, courts may not act on their own to approve such suspensions. The Administration tried to head off Supreme Court review, arguing that there are specific reasons why this particular veteran would not qualify for benefits even if suspension of the deadline were permitted.
The Court, however, chose to go ahead and review Arellano’s appeal, probably because the 6-to-6 split in the appeals court left perhaps many veterans – and the VA – uncertain of what the law allows. The case, however, does not appear to have much impact outside the specifics of the veterans’ law at issue.
The Court has no hearing scheduled for Wednesday. It will be back on the bench for a hearing on Tuesday, October 11. The Court will be closed next Monday for a legal holiday.