The Infuriating Alito Two-Step

Readers could be forgiven for thinking that the title of today's essay is chiefly meant to invoke the two pro-insurrection flags flown by Justice and Mrs. Alito at their homes in Virginia and New Jersey. Those displays were, of course, infuriating, but the two-step I have in mind appears in two of Justice Alito's majority opinions: Dobbs v. Jackson Women's Health Org. (2022) (overruling the constitutional right to abortion); and last week's ruling in Alexander v. South Carolina State Conf. of the NAACP (reversing a lower court judgment that had invalidated South Carolina's electoral map on the ground that it was racially gerrymandered to undercut Black voting strength). Each opinion contains numerous outrageous statements, but here I want to focus on one key analytical move: reliance on another highly dubious precedent as beyond challenge in order to buttress the highly dubious conclusion in the case under consideration.

In Dobbs, the Alito majority summarily rejected the contention that the abortion right can be grounded in equal protection based on a citation of the extremely obtuse Geduldig v. Aiello (1974), which held that distinctions drawn on the basis of pregnancy are not sex-based. In Alexander, the Alito majority declared that the plaintiffs had not introduced sufficient evidence to show that the South Carolina legislature had engaged in racial gerrymandering rather than "mere" political gerrymandering, which, under the Court's (anti-democratic) ruling in Rucho v. Common Cause (2019), is not a basis for relief. In each case, then, Justice Alito and the conservative majority were saying, in essence, your claim fails because we cannot distinguish it from another meritorious claim that we unjustly denied.

That said, in each case, the Court reached the wrong result even accepting the irreversibility of the obtuse precedent on which the Alito opinion relied.

In Dobbs, the Court invented a law-office-history-only approach to unenumerated rights that manifestly contradicted nearly all cases involving other such rights and then purported to distinguish those other rights with the non sequitur that they don't involve destruction of "potential life"/"unborn human being[s]," in order to conclude that the "egregiously wrong" cases protecting a right to abortion can be overruled without threatening those other rights--a claim contradicted even by one of the Justices (Thomas) who joined the Alito majority opinion.

Likewise, in Alexander, the Court erred even if one accepts the authority of Rucho. As Justice Kagan demonstrated in her dissent, the Alito majority opinion did not give the three-judge district court's factual findings anything like the deference the "clear error" standard of review requires.

Thus, it is not necessary to critique the two-step to show that both Dobbs and Alexander were wrongly decided. However, the inclusion of the two-step provides an additional reason why each opinion is wrong.

But wait. Maybe I'm being unfair. Surely a court need not justify from first principles every precedent on which it relies. Isn't it in the nature of a system of precedent to accept prior decisions unless and until they are directly challenged? Perhaps that's a fair rejoinder in an ordinary case, but it doesn't work in Dobbs or Alexander.

In Dobbs, the Court was asked to overrule Roe v. Wade, Planned Parenthood v. Casey, and other abortion precedents. It was offered equal protection as one of several grounds for retaining those decisions. That was hardly a novel idea. Indeed, the portion of the Casey opinion (which was an opinion of the Court, not just a plurality, in this respect) that invalidated the spousal notification provision expressly relied on repudiation of the most odiously sexist prior rulings as "no longer consistent with our understanding of the family, the individual, or the Constitution."

There was a genuine tension between the Court's view in Geduldig that pregnancy has nothing to do with sex and its view in Casey that laws conditioning a married woman's access to abortion on her providing notice to her husband are archaic. A key question in Dobbs, then, was how to resolve that tension: whether to overrule the abortion right or the Geduldig principle. Even though Congress had already repudiated Geduldig in the statutory context through the Pregnancy Discrimination Act of 1978, Justice Alito in Dobbs opted for repudiating the abortion right. That was the wrong choice, but even if it could be justified, what's notable about the two-step is that it doesn't even include an effort at justification. It simply takes as given the preferred line of precedent.

The Court in Alexander did not expressly overrule any precedent, but it also deployed the two-step in a way that undercuts the hypothesis that the two-step is simply a pejorative term for stare decisis. In deploying the two-step in Alexander, the Alito opinion not only relied on Rucho; it effectively expanded Rucho's scope and meaning. To see how requires a somewhat closer look.

The plaintiffs in Alexander alleged and proved to the satisfaction of the district court that the South Carolina legislature relied on racial data in drawing its district lines. Crucially--and as everyone except Justice Thomas accepted--it is not a defense to that charge for the state to say that it used racial data in the service of political gerrymandering. The use of race as the "predominant" factor in drawing district lines is unconstitutional even if the legislature is using it only as a proxy for political affiliation. Put differently, Republicans in the South Carolina legislature cannot say "we've got nothing against Black voters simply in virtue of the fact that they're Black; we undercut their voting strength because they overwhelmingly tend to vote for Democrats." Using race as a proxy for politics is still using race.

That much is, as I said, common ground. The South Carolina legislature did not defend its district lines by saying it used race for political ends. It said it didn't use racial data at all, only political data. However, the district court found, as a factual matter, that this was not true. The evidence indicated that the legislature did use race as a proxy. That factual finding is what Justice Alito's opinion found to be clearly erroneous.

Justice Kagan's dissent explains in detail why Justice Alito and the other Republican appointees who comprise the Alexander majority are wrong. The district court factual findings were probably correct and certainly not clearly erroneous.

In concluding otherwise, Justice Alito's opinion not only distorts the record; it expands the effective meaning of Rucho. Recall that Rucho did not hold that political gerrymandering is constitutional. It held that challenges to political gerrymandering are nonjusticiable.

Part V of the the Rucho majority opinion by Chief Justice Roberts states: "Excessive partisanship in districting leads to results that reasonably seem unjust," adding that the Court's "conclusion does not condone excessive partisan gerrymandering." In other words: (a) some attention to politics in districting is inevitable and legitimate; (b) there is some point beyond which such attention becomes "excessive;" however, (c) the remedy for such excessive partisanship must be found through the political process or state courts relying on state constitutions, not via the federal courts. For the reasons stated in Justice Kagan's Rucho dissent, I strongly disagree with part (c), but the crucial point for now is (b): there is such a thing as excessive partisan gerrymandering.

And that brings us back to Alexander. Whenever Justice Alito cites Rucho, he is careful to describe its holding as involving justiciability. However, the entire thrust of the Alexander opinion is that federal courts must bend over backwards to assume good faith by state legislatures lest they interfere with the legislatures' political judgment. Put differently, Justice Alito's opinion treats all political gerrymandering as legitimate, thereby effectively erasing the Rucho Court's recognition that political gerrymandering can be excessive. As a practical matter, he turns Rucho into a state legislative right to engage in political gerrymandering--with the immediate consequence of rendering racial gerrymandering claims nearly impossible to prove.

* * *

I have focused on two particularly egregious examples of the two-step, both in recent opinions by Justice Alito. Undoubtedly there are other examples in opinions authored by him and by other Justices--perhaps by every other Justice. After all, just about every SCOTUS case relies in part on past precedents, and many of those past precedents could be considered wrongly decided themselves. To be clear, what makes the two-step infuriating is not the mere reliance on a precedent that itself could be challenged. It's the casual compounding of injustice without the felt need for any justification. That is manifest in Justice Alito's opinions in Dobbs and Alexander. I express no opinion about whether that's true of any other particular deployments of the two-step.