SCOTUS Decision Striking Down Racial Gerrymandering Shows Alito Plays The Long Game

Alito has a history of trying to figure out what can get him to five votes and how to use those votes to move the needle.

The Federalist

Supreme Court Justice Samuel Alito doesn’t always write a majority opinion that gives conservatives exactly what they want when they want. Sometimes, he writes decisions that get the needed five votes to make a majority — and move the needle in the long term.

He did it again this week in Louisiana v. Callais.

The case arose after Louisiana created a second majority-black congressional district after a lower court said that the state’s original congressional map (which had one majority-black district) likely violated Section 2. The high court ultimately ruled that Section 2 is designed to enforce the Constitution’s prohibition on intentional racial discrimination but that “Unfortunately, lower courts have sometimes applied this Court’s §2 precedents in a way that forces States to engage in the very race-based discrimination that the Constitution forbids.”

In other words, the decision doesn’t blow up Section 2 of the VRA, as some on the left hypothesized or feared it would. It also doesn’t do what Clarence Thomas — who wrote a concurring opinion that said he “would go further and hold that §2 of the Voting Rights Act does not regulate districting at all” — wanted it to do.

Instead, it’s actually “*better* than getting rid of section 2 outright, because it means section 2 can be used to CHALLENGE majority-minority districts (for impermissibly using race),” as Article 3 Project’s Senior Counsel Will Chamberlain said on X.

This ruling reflects the same Alito that The Federalist’s Editor-in-Chief Mollie Hemingway describes in her new book, Alito: The Justice Who Reshaped the Supreme Court and Restored The Constitution.

What Alito has shown — and what Hemingway reports on in her new book — is that he plays the long game. Alito has a history of trying to figure out what can get him to five votes and how to use those votes to move the needle. Alito himself said as much in 2022:

“If a justice is assigned to write an opinion for the Court, the justice has to try to get at least four colleagues to agree, and that can be a difficult process. What is ultimately produced may be quite different from what the author or any other member of the majority would prefer.”

Such reality was evident in Alito’s majority opinion in the Hobby Lobby case, which held corporation owners are exempt from the Obamacare contraceptive requirement if it burdens their religious beliefs.

As Hemingway explained, “The decision was not an unqualified win for religious adherents, as Justice Anthony Kennedy’s concurrence emphasized the limited scope of the ruling.”

But, Alito had a “tact” that “made him more likely than Scalia to keep a fragile majority together,” Hemingway reported, noting that Kennedy was reluctant to join the majority opinion.

Alito is also able to bring a coalition of justices together with his tactical line of questioning.

In Minnesota Voters Alliance v. Mansky, Andrew Cilek was temporarily barred from voting because he wore a Tea Party shirt to a polling location and a Minnesota law prohibited the wearing of “political” apparel to polling locations, Hemingway explained in her book. During oral arguments, Alito asked the lawyer defending the statute a series of hypothetical questions about how different articles of clothing would be judged under the statute. Eventually, Alito asked whether a shirt with the Second Amendment would be considered political, to which the attorney said yes. Alito followed up by asking whether a shirt with the First Amendment would be considered political, prompting the court to laugh after he showed he absurdity of the statute, as Hemingway explains.

“Prior to oral arguments, Supreme Court handicappers thought the case would be closely divided,” Hemingway wrote. “In fact, Chief Justice Roberts’ majority opinion, which made heavy use of Alito’s colloquy in oral argument, was joined by seven justices, including the liberals Ginsburg and Kagan.”

Alito’s ability to use questioning to help guide the court to a place where more justices are willing to sign on underscores his unique position on the bench.

Then there are cases where Alito may not get everything he — or other justices — want (as Alito alluded to in 2022), but ultimately helps set the groundwork for future additional victories, or, as Hemingway describes, “Alito [shows] the deft way he handles bad precedents when the Court is not ready to overrule them in American Legion v. American Humanist Association.”

In that case, a World War I memorial cross that sat on public land was challenged under the Establishment Clause. The court ultimately ruled that there is an exception for historical monuments under the Lemon Test, which is a test the high court created in 1971 to determine if a government action violates the First Amendment’s Establishment Clause.

Justice Stephen Breyer joined the majority while Thomas wrote that he would have taken the ruling a step further and overruled the Lemon test in all contexts. But as Hemingway explains, three years later in Kennedy v. Bremerton School District, “Gorsuch’s majority opinion relied on Alito’s American Legion opinion in overruling Lemon …”

“One of Alito’s former clerks, Professor Joel Alicea of the Catholic University of America’s law school, explains how the justice’s patient, tactical approach achieved the previously elusive goal of rescuing Establishment Clause jurisprudence from the confusion of Lemon and putting it on sound originalist footing: ‘While Justice Alito’s opinion in American Legion may not have been as pure or as satisfying as many originalists would have liked, it demonstrated a masterful ability to navigate the practical, doctrinal, and theoretical difficulties of moving the Court in an originalist direction in the face of internal disagreement amongst the justices — and to bring about exactly the result that originalists seek,'” Hemingway reported.

As Alito has shown in case after case, he is able to craft opinions that build coalitions and set the groundwork for additional victories. Narrowing the use of Section 2 in Louisiana v. Callais is yet just another example of Alito teeing the ball up, as Chamberlain pointed out.