Justice Sambo Sides With Liberals In North Carolina Case. You Heard Me.
Supreme Court Justice Clarence “I never ever see race” Thomas aka Justice Sambo just threw us a 3-2 curveball. He saw racism where it existed as he sided with the 4 liberal justices concluding that North Carolina illegally used race in gerrymandering one of its districts. The opinion upheld a lower court ruling. The 5 – 3 majority was made up of Kagan, Justices Ginsburg, Bryer, Sotomayor, and Clarence Thomas. What?
Elie Mystal writes how racial gerrymandering involves the Courts trying to prescribe when and how it’s okay for district map makers to be racist. The standard is that race cannot be the “predominate” factor in drawing a district. But politics can be. And so the game, regardless of whether you are trying to give minorities less electoral power or representative electoral power, is to figure out how to do it without making race “predominate.”
Essentially, North Carolina had a couple of districts where black candidates had a decent shot at winning, and so North Carolina tried to shove as many minorities as possible into those districts, leaving the rest of their districts white and right. North Carolina argued that the Voting Rights Act required this to make the state comply with fair political representation, even though the districts they were shoving people into were already balanced. Moreover, North Carolina gerrymanders didn’t really engage into any kind of inquiry into the political make-up of those districts: they just kind of noticed that there were a lot of black people in those districts and saw an opportunity.
There were two districts at issue in Cooper v. Harris; District 1 and District 12. The decision to strike down District 1 was 8-0, with all Justices agreeing that it was an unconstitutional racial gerrymander since the state legislature incorrectly believed that District 1 had to be a majority-minority district under the Voting Rights Act, and admitted that they had drawn the district as such. As for District 12, the decision to strike it down was 5-3, with Thomas casting the deciding vote. Because this was a direct appeal from the District Court (in gerrymandering cases, the appeal skips the circuit courts and goes straight to the Supreme Court), even a 4-4 decision would have left intact the District Court’s decision finding that both districts were improper.
Justice Sambo Saves The Day
While this was a surprise. Justice Sambo stated specifically in his concurrence why he joined Kagan and the other liberals; he believed it a matter of not disturbing the factual findings of the lower courts and applying the correct burden-shifting principles, which was consistent with his dissent in a previous case that addressed this specific District:
As to District 12, I agree with the Court that the District Court did not clearly err when it determined that race was North Carolina’s predominant motive in drawing the district. See ante, at 21. This is the same conclusion I reached when we last reviewed District 12. Easley v. Cromartie, 532 U. S. 234, 267 (2001) (Cromartie II) (dissenting opinion). The Court reached the contrary conclusion in Cromartie II only by misapplying our deferential standard for reviewing factual findings. See id., at 259– 262. Today’s decision does not repeat Cromartie II’s error, and indeed it confines that case to its particular facts. It thus represents a welcome course correction to this Court’s application of the clear-error standard.
Stripped from the legalese that I love, Thomas didn’t make some grand liberal conversion. He just thought that the Supreme Court should be more deferential to lower courts’ factual findings on gerrymandering cases, a position he’d previously taken in regards to this exact district. That said… Thomas does in some rare occasions put aside his “I’m just a good ole boy like you” routine and rule with the liberals on cases involving race (famously, he spoke up loudly from the bench and dissented vigorously from a decision upholding cross-burning as free speech).