At SCOTUS, It's All About Taint

by Michael C. Dorf

The Supreme Court decided two merits cases today and took one extremely puzzling action via a summary order. I'll have a tiny bit to say about an antitrust ruling, before focusing on the Texas racial gerrymandering decision and the puzzling summary order (in the florist case from Washington state). The unifying theme I'll identify is taint.

Both of today's merits cases were 5-4 on ideological grounds, with the conservatives in the majority. Justice Thomas wrote for the Court in Ohio v. American Express. Merchants sometimes accept AmEx cards but encourage customers who wish to pay by credit/charge card to use a different card, because AmEx charges merchants higher fees (than, say MasterCard and Visa). AmEx has responded by including "antisteering" provisions in its contracts with merchants. The question in the case was whether those antisteering provisions violate the antitrust laws. The Court said they don't. I'm sure that's of great interest to antitrust scholars, merchants, and others, but to me the most interesting aspect of the case is that Justice Breyer's dissent begins with a sentence that misspells "laissez-faire" as "lassez-faire." H/T SCOTUSblog reader Col. Mustard. As another reader and Amy Howe point out, this is especially odd, given that Justice Breyer speaks fluent French. And the case was argued in February, not April, so this wasn't a rush job. Oh well. C'est la vie. (Update: After several hours of online mockery, the error was corrected.)

Okay, enough cattiness. Onto the serious business. Let's start with Abbott v. Perez, the Texas racial gerrymandering case.

There is a threshold jurisdictional question that occupies both the majority and dissent at length. It's a somewhat specialized jurisdictional question involving appeals to the Supreme Court from a three-judge district court. Three-judge district courts used to be very common but have been phased out except in voting rights and a handful of other categories of cases, so the jurisdictional issue is not very important--except to the extent that the Court's analysis of appealability here will have spillover effects for its analysis of appealability from district courts to appeals courts. And it will. The majority borrows extensively from the latter context for its holding that there is jurisdiction. The dissenters think that the district-court-to-appeals-court standard shouldn't apply in three-judge-district-court-to-SCOTUS cases and that, in any event, the majority misapplies the former to the particular dispute.

Readers may be amused at how the ideological valences seem to have flipped here. Don't conservatives usually favor tight jurisdictional rules, with liberals favoring more flexible standards? And yet Justice Sotomayor's dissent chides the majority for not adopting a "simple jurisdictional rule[]." Partly we can explain (though not justify) the flips by the fact that the majority wants to reverse on the merits and so wants to get to the merits, whereas the dissenters want to affirm. But there's also a broader explanation. The jurisdictional question here is when does a district court ruling count as a de facto injunction, thus making it immediately appealable. If we say that conservatives generally favor defendants while liberals generally favor plaintiffs, then we can see why conservatives would want broad appealability in cases where the district court grants relief for plaintiffs--and vice-versa for liberals. Again, this is not a justification for the justices' jurisprudential inconstancy with respect to jurisdiction, just an explanation.

On the merits, the majority's core objection to the three-judge district court's determination that three legislative districts amounted to racial gerrymanders in violation of the Voting Rights Act was this: The district court improperly presumed that the illicit motivation for the 2011 plans (which never went into effect) tainted the districts as drawn by the Texas legislature in a 2013 special session; the 2013 map essentially adopted a court-ordered map; thus, the plaintiffs should have had the burden of proving that the 2013 map was itself illicit, rather than relying on any connection to the 2011 map. The dissenters thought that the majority gave insufficient deference to the district court's detailed engagement with the factual record. Beyond that, the dissenters also thought that the taint persisted--in part because the court-ordered map was based on an interim determination that was subsequently superseded.

We could get much further into the weeds if we wanted to, but for now I just want to make a very broad observation: Note how the conservative majority in Abbott v. Perez is extremely reluctant to find taint, even though, as Justice Sotomayor points out in her dissent, quoting the district court: "Despite knowing of the discrimination in its 2011 maps, 'the Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.' " Now contrast that reluctance to find taint with the Court's willingness to manufacture taint in its Masterpiece Cakeshop ruling earlier this month.

Masterpiece was, just about everyone thought, a narrow ruling that turned on what the majority thought was an expression of anti-religious bias in the Colorado Civil Rights Commission. That narrow ruling ought not to have any substantial impact on other cases--although, as Prof. David Cruz noted on DoL, the broad language of Masterpiece affirming the importance of anti-discrimination law as against individual claims for exceptions has already been cited in an Arizona case to reject a claim for an exception.

Yet the prospect of Masterpiece counting as a decision favoring public accommodations laws over speech and religion claims was dealt a blow by the Court's curious action today in the Arlene's Flowers case. The Court granted the certiorari petition, vacated the Washington State Supreme Court decision, and remanded for reconsideration in light of Masterpiece. Because the florist challenging the application of Washington's public accommodations law in Arlene's lost in the state courts, the purpose of the remand cannot be for the Washington Supreme Court to give the government the benefit of the broad language of the Masterpiece opinion. It can only be for the state court to consider whether Masterpiece entails a victory for the florist.

But that makes no sense. The cert petition by Arlene's Flowers raises two questions, neither of which hints at any complaint about anti-religion bias of the sort that the Court found in Masterpiece. The logical thing for the Washington Supreme Court to do now is to write an opinion that says: "There was no anti-religion bias here, so we reaffirm our earlier ruling." Unless one reads Masterpiece as requiring the court to comb the record for such bias. But that would seem to contradict the Court's insistence today in Abbott v. Perez that a plaintiff bringing a discrimination claim has the burden of showing discrimination.

Meanwhile, I fear further inconsistency with respect to taint, perhaps as early as tomorrow or Wednesday, in the Court's anticipated ruling in the Travel Ban Case. Will a majority have the courage to acknowledge that Travel Ban 3.0 was presumptively tainted by the president's clear expressions of a desire for a Muslim Ban? Stay tuned.