Greetings, Court Fans!
We’re back to summarize three more of the decisions the Court has issued in the last few weeks:
- Alexander v. South Carolina Conference of the NAACP (No. 22-807), A 6-3 decision holding that a three-judge District Court clearly erred in finding that race predominated in South Carolina’s redrawing of the boundaries for one of its congressional districts;
- Smith v. Spizzirri (No. 22-1218), where a unanimous Court held that if a district court concludes a dispute is subject to arbitration, it must stay proceedings and lacks discretion to dismiss the suit instead;
- And Harrow v. Department of Defense (No. 23-21), where a unanimous Court held yet again that a particular deadline in the U.S. code is not “jurisdictional,” this time the 60-day deadline for appealing a decision of the Merit Systems Protection Board.
We expect the Court to issue more decisions tomorrow, so keep an eye on your inboxes for a brief recap of those cases as well as more thorough analyses of a few outstanding decisions from last week.
First up is Alexander v. South Carolina Conference of the NAACP (No. 22-807), a decision addressing the difficulty of distinguishing between partisan gerrymandering, which the Court held in Rucho v. Common Cause (2019) is non-justiciable, and racial gerrymandering, which both is justiciable and subjects a state’s legislative map to strict scrutiny if it is shown that race played a predominant role in a state’s redistricting decisions. Drawing the line between permissible partisan gerrymandering and impermissible racial gerrymandering can be difficult, given that race and partisan preferences are highly correlated. In a 6-3 decision written by Justice Alito, the Court raised the bar for prevailing on racial gerrymandering claims in two ways: First, it held that the party challenging a legislative map bears the burden of disentangling race from partisanship, something they must do primarily by presenting an alternative map showing that the legislature’s partisan goals could be achieved without the same racial effects. And second, in analyzing a legislature’s drawing of district lines, courts must start by presuming that the legislature acted in good faith. Because the three-judge District Court that struck down one of South Carolina’s congressional districts on racial gerrymandering grounds failed to follow these principles, the Court vacated and remanded its decision for further proceedings.
While drawing legislative districts is traditionally the responsibility of state legislatures, the Constitution imposes several limits on their authority. Among them is the Fourteenth Amendment, which prohibits states from engaging in racial gerrymandering unless the state can satisfy strict scrutiny. But given the variety of factors that influence a legislature’s decision about where to draw a district’s lines, it is hard to untangle impermissible factors like race from the range of valid considerations. In order to do so, the Court has long held that a plaintiff challenging an alleged racial gerrymander must show that race was the “predominant factor motivating the legislature’s decision to place a significant number of voters without or without a particular district.” In some cases, that can be shown through direct evidence, such as statements from legislators that race played a role. But more often, as was the case here, the only real evidence is circ*mstantial. Such circ*mstantial-evidence-based cases become a lot more difficult when the legislature defends its line-drawing by admitting that it was engaged in (constitutionally permissible) partisan gerrymandering: given the high correlation between race and partisanship (with black voters overwhelmingly likely to support the Democratic party), the maps a partisan gerrymanderer and a racial gerrymanderer would draw are often going to look more or less the same. So how do you tell whether the state’s decisionmaking was influenced by the constitutionally impermissible consideration of race?
South Carolina’s congressional district map is a good example of the problem. It has seven congressional districts, with two at issue in this case. When it was redrawing Districts 1 and 6 following the 2020 census, it had to shift roughly 85,000 voters from the former to the latter due to changes in population. But District 1 has historically been a Republican district (while District 6 has been the sole Democratic one), and various Republican state legislators testified that in redrawing District 1’s boundaries, they wanted to make sure they didn’t “sacrifice” its historically rather-safe seat. The legislature ultimately did this mostly by shifting some Republican portions of District 6 into District 1 and then splitting up the previously unified Charleston between both districts. That kept the percentage of black voters in District 1 basically constant and slightly increased its Republican lean. But soon after the map was promulgated, the NAACP and a District 1 voter sued to challenge it as a racial gerrymander. And a three-judge District Court (which is statutory empowered to adjudicate some voting suits) agreed with the challengers, concluding that South Carolina had adopted a target percentage of black voters for District 1, which directly influenced its drawing of the boundaries. The District Court then enjoined South Carolina from conducting elections in District 1 until it approved a new map. South Carolina appealed that decision as of right to the Supreme Court.
In a lengthy opinion by Justice Alito, a 6-3 majority concluded that the District Court’s factual findings were clearly erroneous and vacated and remanded its decision. Skipping over the minutiae (of which there is a lot), Alito’s opinion rested on three main points. First, he concluded that district courts must start by presuming that the legislature has acted in good faith. That presumption mattered quite a lot here because while various pieces of evidence relied on by the District Court were consistent with its finding that the South Carolina legislature engaged in racial gerrymandering, those same pieces of evidence were also consistent with other explanations, like simple partisanship. Here, Rucho loomed large: Alito repeatedly expressed the concern that courts must take this presumption of good faith seriously, as otherwise non-justiciable partisan gerrymandering claims could be turned into justiciable racial gerrymandering ones because evidence the legislature engaged in partisan gerrymandering could be portrayed as circ*mstantial evidence the legislature had a racial motive.
Having relied on the presumption of good faith to dispose of much of the District Court’s factual findings, Justice Alito turned to the challengers’ main evidence: four expert reports. Going through them one by one, Alito found them unpersuasive, largely because none of these experts came up with a satisfactory methodology for disentangling partisanship from race. What’s most notable here, at least to us, is just how thoroughly Alito engaged with (and found unpersuasive) the details of each expert’s analysis, something that appellate courts performing clear-error review don’t customarily do.
Finally, Justice Alito faulted the District Court for not drawing an adverse inference against the challengers over their failure to propose a substitute map that would have satisfied the South Carolina legislature’s other purposes (including keeping District 1 Republican) while still producing a greater racial balance. And while the Court’s prior decisions have long suggested that an alternative map may be helpful, none has gone quite as far as this decision in holding that it is practically required (with an adverse inference appropriately applied where a challenger fails to provide one). For these reasons, Justice Alito reversed the District Court’s decision vacating District 1 and remanded for the District Court to reconsider a vote-dilution claim that the District Court had treated as secondary to the racial gerrymandering claims.
Justice Thomas, writing only for himself, concurred. He began by clarifying that he did not join the lengthy portion of Justice Alito’s majority opinion debunking the challengers’ experts’ analysis, concluding that this kind of “searching review” falls outside the scope of ordinary clear-error review. But he nonetheless joined as to the result, reasoning that this portion of the decision was unnecessary to the outcome given the District Court’s other errors. With those minor points out of the way, he then argued (at great length) that the Court should do the same thing with racial gerrymandering as it did with partisan gerrymandering claims in Rucho: Hold that they are categorically nonjusticiable because no judicially manageable standard exists for resolving any redistricting claim.
Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, in an opinion about as lengthy and detailed as Justice Alito’s majority one. Kagan began by trying to reframe the issue: While it is true that race and partisanship are heavily correlated, that does not mean that if legislature draws a map with a partisan purpose in mind, its actions are necessarily valid. Instead, the Fourteenth Amendment prohibits legislatures from using race as a proxy for expected partisan voting activity. And in their view, that’s exactly what South Carolina did in drawing District 1: Legislators’ ultimate goal may well have been to keep District 1 Republican, but the way they achieved that goal was by relying heavily on race to decide who to include in each district.
From there, the dissenters criticized just about every aspect of the majority’s analysis. Much like with the majority opinion, we can’t do justice to it here, but we’ll pick out the two main points. First, perhaps not surprisingly, Kagan criticized the majority for analyzing the District Court’s factual findings with a level of scrutiny that goes far beyond the ordinarily highly deferential clear error standard. And second, she criticized the majority for “reworking” the law of racial gerrymandering by creating a “presumption” that the legislature has acted in good-faith and by requiring courts to draw an adverse inference against plaintiffs who do not provide an alternative map, no matter how persuasive a challenger’s other evidence. Tying these points together, Kagan observed that the closest precedent for Justice Alito’s approach was not found in any of the Court’s prior majority opinions. Instead, its closest analogue was Justice Alito’s dissenting opinion several years ago in Cooper v. Harris (2017), which Alito’s majority opinion here frequently cited. As Justice Kagan saw things, “for all practical purposes” the Cooper dissent has now “become[] the law.”
In our second case, Smith v. Spizzirri (No. 22-1218), the Court addressed district courts’ authority under Section 3 of the Federal Arbitration Act (FAA). That section provides that if a dispute is subject to arbitration, the district court “shall on application of one of the parties stay the trial of the action until [the] arbitration” has concluded. For decades, a circuit split existed regarding whether Section 3 also allows a district court to dismiss a suit entirely on the basis that the claims are subject to arbitration, or whether it instead requires the court to stay the proceedings. On one side of the split, the Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuits have held that Section 3 mandates a stay when all claims are subject to arbitration and a party properly requests a stay. On the other side, the First, Fifth, Eighth, and Ninth Circuits have upheld district courts’ dismissals of such cases. In a short opinion, a unanimous Court sided with the majority view, holding that Section 3 requires a district court to stay proceedings when a case raises an arbitrable dispute and a party requests a stay pending arbitration.
The petitioners in this case were, or had been, delivery drivers for an on-demand delivery service operated by the respondents. After the petitioners sued in Arizona, alleging that they were misclassified as independent contractors and were owed wages and paid sick leave, respondents removed the case to federal court and moved to compel arbitration and dismiss the lawsuit. The petitioners agreed that arbitration was warranted but argued that Section 3 required a stay of proceedings, not dismissal. The District Court nonetheless dismissed the action, finding that it had discretion to do so under circuit precedent. The Ninth Circuit affirmed, noting that it was bound by its own precedent, but two members of the panel concurred, expressing their belief that the Ninth Circuit’s precedent was wrong and urging the Supreme Court to take up the issue and resolve the split. The Court obliged.
Following an oral argument on April 22 (a quick turnaround!), the Court reversed and remanded. Justice Sotomayor, writing for a unanimous Court, began with Section 3’s text. Her analysis was brief: Section 3’s use of the word “shall” reflected Congress’s mandate that a court “stay” the proceeding, an interpretation consistent with the Court’s interpretation of the term in other sections of the FAA. And “[j]ust as ‘shall’ means ‘shall,’ ‘stay’ means ‘stay’”—in other words, a temporary suspension of a proceeding, not a conclusive termination of such proceeding.
In reaching this conclusion, Justice Sotomayor rejected the respondent’s argument that “stay” means that a district court must “stop” in-court litigation, which can be done by dismissal. First, the respondent’s reading was in conflict with the definition of “stay” as it would have been understood at the time the FAA was enacted. It was also in conflict with the surrounding statutory text, which ensures that parties can return to federal court if the arbitration is unsuccessful. “That return ticket is not available if the court dismisses the suit rather than staying it.” Sotomayor also rejected the respondent’s argument that district courts retain inherent authority to dismiss proceedings subject to arbitration, citing the well-established principle that inherent powers may be controlled or overridden by statute.
Finally, Justice Sotomayor concluded that the structure and purpose of the FAA compelled the same conclusion. Section 16 of the FAA generally prohibits immediate interlocutory appeals of orders compelling arbitration but allows interlocutory appeals for orders denying arbitration requests. This choice was consistent with the FAA’s purpose to move parties into arbitration quickly and easily. But a dismissal of a suit subject to arbitration triggers the right to an immediate appeal, frustrating Congress’s desire to forbid appeals in such circ*mstances. Stays also allow suits to stay on a district courts’ dockets, allowing those courts to exercise the supervisory role that the FAA envisions for them (e.g., by appointing arbitrators, enforcing arbitrator-issued subpoenas, and facilitating recoveries on arbitral awards). Dismissals, in contrast, render those procedural protections only accessible if a party brings a new suit and pays a new filing fee.
Our last case for this Update is Harrow v. Department of Defense (No. 23-21). It’s the latest in a long line of decisions holding that one or another limitation found in the U.S. Code is not a “jurisdictional” requirement but instead only a non-jurisdictional claims-processing rule subject to waiver. This time, in a unanimous decision by Justice Kagan, the Court held that the statutory deadline for appealing decisions of the Merit System Protections Board (MSPB) is not jurisdictional, so it is subject to equitable exceptions.
Stuart Harrow, a longtime employee of the Department of Defense, was furloughed for six days in 2013 and challenged this decision before the MSPB. In 2016, an administrative law judge upheld the furlough. Harrow sought review by the full MSPB, but the Board was not able to resolve the case until May 2022, at which point the Board affirmed the administrative law judge’s decision. Harrow did not learn of the Board’s decision until more than 120 days after it was issued because of a problem with his email address. By the time he discovered the decision on the MSPB’s website, the 60-day window prescribed by 5 U.S.C. § 7703(b)(1) for appeals to the Federal Circuit had expired. Harrow filed his appeal late, asking the Federal Circuit to overlook his untimeliness and apply equitable tolling due to the extenuating circ*mstances. But the Federal Circuit dismissed his appeal, believing that the 60-day deadline was a jurisdictional requirement that could not be tolled.
In reversing the Federal Circuit, Justice Kagan concluded that Section § 7703(b)(1) lacks the clear statement required to transform the filing deadline into a jurisdictional requirement. As she explained, although the statutory requirement can be “read as [a] categorical command[] . . . Congress legislates against the backdrop of judicial doctrines creating exceptions, and typically expects those doctrines to apply.” So courts can excuse a party’s non-compliance for equitable reasons except “in a small set of cases” where the procedural rule is jurisdictional. Although Congress doesn’t need to include “magic words” to transform a given procedural rule into a jurisdictional one, it does need to provide “a clear statement” that “plainly show[s] that Congress imbued [the rule] with jurisdictional consequences.”Here, although the 60-day deadline is stated in mandatory terms—appeals “shall be filed” in that window—Kagan concluded that these words were “of no consequence” to the jurisdictional issue because nothing in Section 7703(b)(1) mentions the Federal Circuit’s jurisdiction, whether generally or over untimely claims. As such, the Court once again concluded (as it almost always does in cases asking whether a particular rule is jurisdictional) that Section 7703(b)(1)’s time limit does not deprive the Federal Circuit of power to hear Harrow’s appeal.
