Supreme Court Update: Abbot v. Perez (17-586), Currier v. Virginia (16-1348), Florida v. Georgia (142, Orig.)

June 28, 2018 Supreme Court Update

Greetings, Court Fans!

As the rest of the world grapples with their hopes, dreams, or fears of a post-AMK Court, we're still grappling with the final decisions of the Court he leaves behind. In this Update, we bring you summaries of Abbot v. Perez (No. 17-586), Currier v. Virginia (No. 16-1348), and Florida v. Georgia (No. 142, Orig.) Let's hit it!

In Abbot v. Perez (No. 17-586), a divided Court rejected a claim of racial gerrymandering in Texas. Overturning a lower court's findings that Texas had impermissibly burdened the voting rights of Hispanic voters by creating new legislative districts in 2011 and 2013, the Court's conservative majority held that there was insufficient evidence that the redrawn maps discriminated against Hispanic voters either intentionally or in effect. The case sets a high bar for challenges to state redistricting, and again reflects the Court's recent skepticism to challenges based on the Voting Rights Act of 1965, a trend that first manifested itself in Shelby County v. Holder (2013).

The court's decision in Abbott is almost as complex as the chain of events that led to the lawsuit. Racial gerrymandering—i.e. drawing electoral maps intended to discriminate based on race—has long been prohibited under the Equal Protection Clause of the 14th Amendment. Moreover, whenever a state redraws a district, the Voting Rights Act requires states to consider the impact the redrawn map will have on racial minority representation. Against this backdrop, in 2011, the Republican-controlled Texas state legislature redrew the state's congressional and legislative maps in a way that was very advantageous to the GOP. Things then got complicated. The Texas Legislature's 2011 plans were immediately tied up in litigation. The plaintiffs filed suit in Texas, and the case was assigned to a three-judge District Court. The District Court agreed with the plaintiffs and drew interim plans as Texas's primaries were approaching. However, it gave no deference to the Legislature's plans. Texas challenged the court-ordered plans, and the Supreme Court reversed and remanded with instructions that any interim plans had to start with the Texas Legislature's 2011 plans, but allowed the lower court to make adjustments as required by the Constitution and the Voting Rights Act. The District court followed those instructions and created new interim plans, which the Texas legislature adopted in 2013 with only minor changes. Texas conducted its 2014 and 2016 elections under the 2013 plans. Then, in 2017, the District Court found that several parts of the 2013 plan were racially discriminatory. Declaring most of the 2011 plan to be the result of racial gerrymandering, the District Court held that the 2013 plan failed to cure the "taint" of the 2011 Legislature's alleged discriminatory intent. The District Court then looked to three individual districts, which it found violated § 2 of the Voting Rights Act because the new districts had the effect of depriving Latinos of the equal opportunity. Finally, it found that one of the districts under the 2013 plan was the result of racial gerrymandering, citing certain changes that the legislature made to the Texas court's plan. The court gave the state attorney general three days to decide whether the Legislature would address these issues or whether to have the court conduct further proceedings. Texas appealed.

In an opinion authored by Justice Alito, a divided court reversed. The Court first addressed whether it even had power to hear the appeal. 28 U.S.C. § 1253 grants the Court the power to hear an appeal from a decision of a three-judge district court only if that panel grants or denies "an interlocutory or permanent injunction." The lower court did not call its order an "injunction," so there was some question whether the Court actually had jurisdiction. Dispelling the notion that the District Court had to incant magic words to trigger jurisdiction, the Court held that an order had to be judged by its practical effects. Because the order in this case had the practical effect of forcing Texas to develop new plans—the short time frame of the order demonstrated that the court expected a new plan before the election—or risk facing the possible ramifications and attendant inference of evil motive if the State went forward with old plans in spite of the order. In short, Section 1253 "must be strictly, but sensibly constructed, and here the District Court's orders, for all intents and purposes, constituted injunctions."

Moving to the merits, the Supreme Court held that the District Court erred in requiring the State to prove that the 2013 Legislature had purged the "taint" that the court believed existed in the 2011 plan. The district court had struck down the majority of the plan under the supposition that the State bore the burden of proving the new plan was not discriminatory. The Court noted, however, that ordinarily the challenger of an allegedly discriminatory law bears the burden of proof. This is even more true in redistricting cases where there is a presumption that the legislature acted in good faith. And past discriminatory conduct is not dispositive and does not create a rebuttable presumption of discrimination – instead it is but "one evidentiary source" relevant to intent. The Court therefore held that the District Court was wrong: the 2011 plan was repealed, the criteria in the 2013 plan was different and enacted the district court's own plan from earlier that year. It outright rejected the suggestion that Texas has some obligation to prove that it "cured" a "taint," because that would flip the burden of proof on its head. While the 2011 Legislature's intent and the district court's interim plan may bear on the 2013 Legislature's intent, the evidence of the record was plainly insufficient to prove bad faith or intentional discrimination.

The Court then addressed the challenge directed at the four individual districts. As noted above, the District Court had held that three districts were illegal because they had a "effect" of being discriminatory. To establish an "effect" claim, a plaintiff must establish: (1) a geographically compact minatory population sufficient to constitute a majority in a single-member district; (2) political cohesion among that group; and (3) bloc voting to defeat the minority's preferred candidate. The plaintiff must then prove that the district lines dilute the votes of the members of that minority group. The Court held that the plaintiffs failed to carry their burden with regard to all three districts: the first failed because the plaintiffs failed to show that an additional Latino opportunity district court be created and the second and third failed because the plaintiff could not satisfy the overall dilution element. However, the Court held that there was racial gerrymandering in the fourth district, which the Legislature did not copy from the 2013 court plan. Instead, the Legislature went through various machinations to create a Latino opportunity district, including moving cities in and out of the district. Texas had argued that it did so because it had "good reasons to believe" it had to do this redistricting to satisfy § 2 of the Voting Rights Act. However, when the redistricting benefited minorities, the Court held the State had the burden of proof and failed to carry it.

Justice Thomas, joined by Justice Gorsuch, wrote a short concurring opinion, echoing his previously stated view that § 2 of the Voting Rights Act is not a valid basis on which to strike down a redistricting map.

Justice Sotomayor led the charge for the dissenters, castigating the majority for going "out of its way to permit the State of Texas to use maps that . . . were adopted for the purpose of preserving the racial discrimination." This, Justice Sotomayor stated, displayed a "disregard of both precedent and fact" that "comes at serious costs to our democracy." As a result of the majority's decision, she claimed, minority voters to "continue to be underrepresented in the political process" despite "undeniable proof of intentional discrimination," undermining a right to vote that "is too precious to be disregarded in this manner." Justice Sotomayor found three fundamental errors in the majority's reasoning. First, she believe that the Court did not have jurisdiction to hear the appeal in the first place. She noted that § 1253 only allowed appeals of an injunction. There was no injunction in this case. Certainly, the District Court had addressed the merits of the challenges. However, it had not yet fashioned a remedy—it had said that the issue had to be remedied by either the legislature or the court, meaning that there was no remedy ordered. Second, Justice Sotomayor believed that the majority mischaracterized the District Court's order in claiming that the district court had shifted the burden of proof to Texas. Not so, Justice Sotomayor said. She criticized the majority for ignoring "the substantial amount of evidence of Texas' discriminatory intent, and indulge[d] Texas' warped reading of the [district court's] legal analysis." Far from imputing discriminatory intent from past acts, the District Court engaged in a "painstaking analysis" of discriminatory intent, applying well-trodden precedent on the matter. In her view, the District Court followed the Court's test for "racially discriminatory intent," as set forth in Arlington Heights v. Metropolitan Housing Dev. Corp. (1977), "to a tee." The District Court evaluated the discriminatory impact of the official action, the historical background, the specific sequence of events leading up to the challenged decision, departures from the procedures or substance, and the legislative and administrative history of the challenged act. It found that these factors all led to an inference of discriminatory intent. Taking all the evidence together, even though there was little direct evidence of discrimination, Justice Sotomayor believed that there was "substantial evidence" that Texas adopted the maps "to insulate (and thus continue to benefit from) the discriminatory taint of its 2011 maps." This is not burden shifting, Justice Sotomayor stated, but rather the proper application of Supreme Court precedent and a thorough analysis of the record. By contrast, she called the majority's analysis of the record "cursory" and misguided. Finally, Justice Sotomayor disputed the majority's district-by-district analysis, claiming the Court performed a cursory analysis that applied the wrong standard and misread the record. On the whole, Justice Sotomayor criticized the majority for abdicating the Court's role as a protector of minority voting rights. She noted that the right to equal participation would "mean little" if "courts do not remain vigilant in curbing States' efforts to undermine the ability of minority voters to meaningfully exercise that right." The majority's opinion "does great damage to that right of equal opportunity," she said, "not because it denies the existence of that right, but because it refuses its enforcement." The majority, Justice Sotomayor said, "intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below" all "to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters."

The left and right side of the Court battled again in Currier v. Virginia (16-1348), this time over the reach of the protections of the Double Jeopardy Clause. In the end, Justice Kennedy gave the conservatives a fifth vote to hold that a defendant who consents to sever one or more of the claims against him cannot invoke double jeopardy to prevent a second trial on the severed claims. However, he declined to say whether a criminal defendant could ever invoke issue preclusion, as parties can in civil cases, leaving the plurality and dissent tied 4-4 on that issue.

The case started with a burglary of a safe containing guns and cash. Most of the cash was taken, and the safe and guns were found at the bottom of a river. The police quickly nabbed the victim's nephew who, in turn, pointed to Currier as his accomplice. Currier was charged with burglary and grand larceny, and because he had prior felony convictions (for burglary and larceny, as it turns out), he was also hit with a felon-in-possession charge, on the theory that he must have handled the guns in order to get to the money in the safe. Because evidence of the prior convictions was needed to prove felon-in-possession, but could have been prejudicial on the burglary and grand larceny charges, Currier and the prosecution agreed to sever the charges. Currier went to trial on burglary and grand larceny first, and was acquitted. At that point, Currier argued that double jeopardy precluded a trial on the felon-in-possession charge, or in the alternative, that the government should be precluded from relitigating any issue that had been resolved in his favor in the first trial. The trial court rejected Currier's arguments. He was tried and convicted on the felon-in-possession charge, and that conviction was upheld by the Virginia Court of Appeals and the Virginia Supreme Court.

The Supremes likewise affirmed, with Justice Gorsuch writing for the 5-4 majority. The Double Jeopardy Clause provides that no person may be tried more than once "for the same offence." In Ashe v. Swenson (1970), the Court appeared to have extended the reach of the Double Jeopardy Clause by holding that a defendant tried and acquitted of robbing the first of six poker players in a single game could not be tried for robbing a second player. Even though the robbery of the second player was technically a different offense from the robbery of the first player, Ashe found that conducting a second trial would be tantamount to double jeopardy, as the first jury had necessarily found that the defendant was not one of the robbers. Justice Gorsuch called Ashe a "significant innovation" in the Court's Double Jeopardy jurisprudence and noted that "some" have argued that it "sits uneasily" with the Court's double jeopardy precedent and the Constitution's original meaning. The majority stopped short of overturning Ashe, however, instead distinguishing this case on the ground that Currier has consented to the severance and thus two trials. The majority relied on Jeffers v. United States (1977), in which the Court held that a defendant who consented to separate trials on greater and lesser-included offenses could not invoke double-jeopardy to prevent trial on the greater offense after conviction for the lesser-included offense: "If a defendant's consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe." The majority rejected Currier's argument that he had no choice but to sever because evidence of his prior convictions would have prejudiced the jury's consideration of the burglary and larceny charges. It would have been constitutionally permissible to try Currier on all three charges at the same time, so it was up to him to weight the risks and benefits of each approach.

Without Justice Kennedy, a plurality of Gorsuch, Thomas, Alito, and The Chief proceeded to opine that the principles of issue preclusion should not be imported from the civil context into the criminal context. The four began, as might be expected, with the text. While the Seventh Amendment provides that in suits at common law "no fact" tried by a jury shall be re-examined by another court, the Double Jeopardy Clause speaks only to "offence[s]" writ large. English and early American criminal cases also expressly rejected the notion that double jeopardy barred relitigation of issues or facts. In the present day, importing issue preclusion principles from the civil context could have perverse consequences for criminal defendants. For one thing, issue preclusion runs both ways in civil cases. If prosecutors are barred from relitigating facts decided in earlier cases, it could be argued that defendants should likewise be barred from relitigating facts decided against them. Another potential consequence of making severance more "costly" to prosecutors is that States will be less inclined to allow or even favor severance, as Virginia did here.

Justice Kennedy penned a short concurrence stating that the Court's decision should start and stop with Currier's voluntary choice to sever the claims. He would not go further in this case to define whether and how much the Double Jeopardy Clause encompasses the principles of issue preclusion. (We expect to be at the top of Senator Blumenthal's list of questions for Kennedy's potential replacement.)

Justice Ginsburg wrote for the dissenters. In her view, a defendant who consents to severance does not waive his right to invoke issue preclusion on issues necessarily decided in his favor in an earlier acquittal. Justice Ginsburg noted that Virginia's default practice is to sever felon-in-possession charges unless the prosecutor and defendant otherwise agree. There was no indication that in going along with the state's default practice Currier expressly waived his right to argue the preclusive effects of an acquittal. The majority's holding ran counter to the Court's practice of "indulg[ing] every reasonable presumption against waiver of fundamental constitutional rights." The dissent also disputed the plurality's suggestion that issue preclusion is appropriate only in cases of prosecutorial misconduct, citing three prior cases approving of issue preclusion without any evidence of prosecutorial misconduct.

Finally—by popular demand—we bring you Florida v. Georgia (No. 142, Orig.), the original-jurisdiction water-basin dispute that somehow took six months to decide (if indeed it can be said that the case was decided). When Florida and Georgia met on the gridiron last autumn, the Bulldogs thrashed the Gators 42-7. But, on the last day of OT17, Gator nation received a bit of retribution by a much narrower 5-4 score. In reality, however, the victory may be short-lived, as the Court reserved judgment on the ultimate disposition of whether Georgia's upstream usage of the waters of the Apalachicola-Chattahoochee-Flint River Basin (the Basin) must be capped to ensure equitable apportionment and an adequate flow of freshwater into Florida's Apalachicola region. Rather, the Court only determined that the case should be remanded to the Special Master with a clarified legal standard and a list of factual inquiries to be resolved.

The dispute about the Basin's waters goes back to at least the early 80s, but this case arose in 2013 when Florida requested that the Court use its original jurisdiction to issue a decree equitably apportioning the waters of the Basin. The Court appointed a Special Master, who ultimately dismissed Florida's claim for failing to meet the threshold of "clear and convincing evidence" showing that Florida's injuries can be effectively redressed by limiting Georgia's consumption.

Justice Breyer, joined by Roberts, Kennedy, Ginsburg, and Sotomayor, concluded that the Special Master held Florida to too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. "Clear and convincing evidence" is indeed a threshold standard for showing that injury occurred, but it makes "little sense" to require that a complaining State initially meet that standard for showing that the injury can be redressed. Rather, with regard to redressability, the majority held that Florida should only have to show that, appealing to the principles of "flexibility" and approximation," it is likely to prove that it is possible to fashion such a decree. With that in principle in mind, the majority waded deep into the record, including the 1,190 page Army Corps of Engineers (Corps) Master Manual that sets forth protocols for how the Basin's water is managed in drought and non-drought conditions, and presumably brought out a calculator to compute how many cubic feet per second of water would reach Lake Seminole in the Apalachicola region in a series of hypotheticals. The majority concluded that "the Master had assumed that: (1) Florida has likely suffered harm as a result of the decreased water flow into the Apalachicola River; (2) Florida has made some showing that Georgia, contrary to equitable principles, has taken too much water from the Flint River; and (3) Georgia's inequitable use of the water may have injured Florida, but more findings are needed." The majority's examination of the record added two more conclusions: "(4) an equity-based cap on Georgia's use of the Flint River would likely lead to a material increase in streamflow from the Flint River into Florida's Apalachicola River, and (5) the amount of extra water that reaches the Apalachicola may significantly redress the economic and ecological harm that Florida has suffered."

However, once the majority got a taste for analyzing the cubic feet per second of streamflow in the Apalachicola-Chattahoochee-Flint River Basin in various scenarios, it's appetite for further facts proved insatiable. Thus, along with clarifying the legal standard under which to analyze Florida's claims, the majority remanded the case to the Special Master with five additional fact-finding questions that will get at the heart of Florida's case (and presumably keep the Special Master busy for a while). Knowing how anxiously you'll be awaiting our next Florida v. Georgia summary, we present just one of those questions to tease of some of what's to come in this ongoing dispute: "To what extent (under the Corps' revised Master Manual or under reasonable modifications that could be made to the Manual) would additional water resulting from a cap on Georgia's water consumption result in additional streamflow in the Apalachicola River?" (Maybe this would be another good question for the next SCOTUS nominee…)

The dissenters, an unusual cohort of Thomas, Alito, Kagan and Gorsuch, disagreed that further fact-finding was needed and lamented that the majority had "muddled" the rules governing equitable-apportionment jurisprudence "beyond recognition." Thomas, who penned the dissent, supported his belief that sufficient fact-finding had occurred by pointing to the one-month trial conducted by the Special Master involving 40 witnesses and more than 2,000 exhibits, and the discovery process that included 7.2 million pages of documents, 130 third-party subpoenas, over 30 expert reports, and nearly 100 depositions (including 29 expert depositions). He then tried to un-muddle the equitable-apportionment rules, stating that the Court's clear balance-of-harms test required Florida to demonstrate by clear and convincing evidence that the benefits of apportionment substantially outweigh the harm that might result, and Florida failed to adduce sufficient evidence that changes would enable it to receive more water when it was needed (i.e., that it could receive any benefit). The dissent believed that the Special Master possibly cited the "clear and convincing" standard because he had, in fact, made that same determination on the merits. However, even if the Master applied the incorrect threshold standard, the dissenters believed that the Master's factual findings still demand that Georgia ultimately prevail under the balance-of-harms test, which inarguably requires clear and convincing evidence. Rather than accepting the Master's findings, Thomas opined that the majority parsed the prior precedent applied by the Special Master and "mushe[d] the requirements" of several clear rules into an "unrecognizable mishmash of principles." The dissent also made two practical points: (1) if a month of trial and voluminous discovery did not answer whether Florida would obtain an appreciable benefit from capping Georgia's usage, it seems unlikely that remanding the case for further fact-finding will yield a clear and convincing answer, and (2) of the region supplied by the Basin, 98% of the population and 99% of the economic production are in Georgia. Having advanced its practical and legal disagreements, the dissenters decided that they could not let the majority have all the fun calculating the cubic square feet of streamflow based on evidence found in the record. So they broke out their calculators and checked the majority's math to prove the broader point that any appreciable benefit to Florida could only be achieved by ordering the Corps to change its water-management policy, something the Court lacked authority to do because the Corps was not a party to the case.

That'll do it for this installment. But we've still got three more signed opinions to cross of our list, along with the mopping up today's orders and per curia, so it won't be long…