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A Busy Spring for Justice Breyer



Before he retires from the bench -- and soon-to-be-Justice Brown Jackson joins the Court -- Justice Breyer will has plenty left on his plate.

Barring some unforeseen, last-minute surprise, the U.S. Senate will confirm Judge Ketanji Brown Jackson to the Supreme Court later this week in a historic vote that will give the country its first Black woman on the nation’s highest court. Judge Brown Jackson will have to wait until October 2022 to assume that role, however. When he announced his retirement earlier this year, Justice Stephen Breyer made clear his intention to finish out the court’s current term, which ends in June.

During his last few months on the bench, Justice Breyer will hear arguments on several high-profile matters and will issue decisions on many more. Some of those decisions could even impact the 2022 congressional midterm elections.

Let’s take a look.

A Busy Spring for Justice Breyer

Justice Breyer will not be easing into retirement—the Supreme Court docket is as full as ever. In just the last two months, justices have heard arguments in cases regarding:

  • The Biden administration’s regulation requiring health care workers at facilities that participate in Medicare and Medicaid be fully vaccinated against COVID-19;

  • A collective bargaining case involving Southwest Airlines that asks whether an airline employee who works as a supervisor is a “transportation worker” and therefore not required to arbitrate her wage dispute with the airline;

  • Whether North Carolina legislators have a right to intervene in a lawsuit regarding the state’s voter ID law; and

  • The Environmental Protection Agency’s authority to regulate greenhouse gas emissions from virtually any industry.

Between now and June, the justices might hear arguments on cases challenging the constitutionality of bankruptcy fees put in place by Congress in 2017 and a Trump-era regulation that would have prohibited noncitizens from receiving green cards if federal officials determined they are likely to become reliant on federal government assistance.

Justice Breyer and his eight colleagues also are expected to issue rulings this spring on whether religious organizations can benefit from public funding; whether the federal government can be compelled to release information related to national security when it is being sued in court; on a Mississippi law restricting access to abortions; and on a New York gun permitting law.

Congressional Redistricting Challenges Proliferate

Cases concerning state efforts to redraw congressional and state legislative district maps also could find their way onto the Supreme Court’s docket. In fact, they already have … kind of.

In February, Justice Breyer was on the losing end of a 5-4 Supreme Court decision agreeing to the state of Alabama’s request to temporarily halt a district court ruling that had required the state to redraw its congressional district maps to comply with the Voting Rights Act. A dissenting opinion written by Justice Elena Kagan and joined by Breyer and Justice Sonia Sotomayor, argued keeping the Alabama maps in place “forces Black Alabamians to suffer” from “vote dilution.”

According to the Brennan Center for Justice, as of April 1, 2022, 67 cases have been filed challenging congressional and state legislative maps in 23 states. The cases rest on allegations that the new maps are racially discriminatory or gerrymandered to guarantee a certain partisan outcome. State courts in Alaska, Maryland, New York, North Carolina, and Ohio already have ruled maps must be redrawn – some multiple times.

Matters are particularly heated in states “purple” like Ohio where neither party has enjoyed an historical advantage. In the Buckeye State, the state supreme court even has threatened to hold members of the state redistricting commission in contempt for failing to redraw maps in a satisfactory way. Although early voting for the primary election was supposed to start in Ohio this week, the state hasn’t yet finalized its districts for the 2022 elections. As one local news station said, it’s still “unclear when Ohio’s elected leaders will know what districts they’re running to represent, or even when they’ll have a ballot with their name on it.”

The Supreme Court’s History on Redistricting

The nation’s highest court has a long history regarding redistricting challenges.

After dismissing a lawsuit brought by three Illinois voters in the 1940s on the grounds that there were no federal requirements relating to the “compactness, contiguity, or equality of population” when it came to legislative maps, in its decision in the 1962 case Baker v. Carr, the Supreme Court established that federal courts did, indeed, have the jurisdiction to consider constitutional challenges to state legislative redistricting plans. Justices affirmed that decision two years later in Wesberry v. Sanders. The court’s majority in that case advised, “as nearly as is practicable one man’s vote in a congressional election is worth as much as another’s.”

The court’s most recent redistricting case came in 2019 and resulted in a more muddled conclusion, however. Specifically, the justices found that while Congress and state legislatures may regulate partisanship in redistricting, claims of excessive partisanship are beyond the capacity of federal courts to resolve. “[A] majority of justices held that because of the difficulty in ascertaining how much partisanship was too much, the question was too difficult for federal courts to answer,” explains the National Conference of State Legislatures. Practically, according to Democracy Docket, that ruling meant that “during future rounds of redistricting, partisan gerrymandering” could go forward “unless a state’s constitution prohibits it or Congress passes a law that bans the practice.”

That ruling makes it sound like there won’t be much for Supreme Court justices to fight over this year, right?

Not quite.

While the 2019 case concluded gerrymandering for political purposes was beyond the Supreme Court’s purview, according to National Public Radio, voting rights advocates have pointed to Chief Justice John Roberts’ majority opinion in that case to justify their challenges to the Republican-written districts in Pennsylvania and North Carolina. That’s because Chief Justice Roberts’ decision explicitly said, “state courts may enforce limits on gerrymandering under state constitutional and statutory provisions.” (Emphasis added.)

Because the Pennsylvania and North Carolina supreme courts have ruled that partisan gerrymandering is unconstitutional, voting rights advocates argue the maps must be redrawn—and they’re willing to appeal to the Supreme Court if state legislatures or redistricting bodies will not comply.

So far this year, the Supreme Court has declined to hear challenges to congressional maps. In the Alabama case referenced above, there was no hearing. In March, justices refused to block orders by courts in North Carolina and Pennsylvania that threw out the congressional maps enacted by the states’ Republican legislatures.

That stance could soon change, however. As Democracy Docket explains,

  • Current federal law requires that any case that challenges the constitutionality of a congressional or state legislative apportionment plan must be heard by a three-judge district court panel.

  • Another federal law requires any decision from one of these three-judge panels is appealable directly to the Supreme Court.

  • Under that law, the Supreme Court also has to accept the appeal and rule on the merits. It doesn’t have to hold a hearing or oral arguments, but it has to make a final decision.

“Combined, these two laws effectively mean that any time a plaintiff alleges a congressional or state legislative district violates the U.S. Constitution, the court will eventually decide the outcome if a ruling is appealed,” Democracy Docket concludes.

Justice Breyer’s Jurisprudence

If even one of the 67 congressional map cases generates a hearing before the nation’s highest court, all eyes will be on Justice Breyer, who has a deep but somewhat contradictory record on this issue.

In a 2015 case, state legislators in Alabama challenged district maps written by Republicans. In a 5-4 decision authored by Justice Breyer, the Supreme Court declined to rule on the constitutionality of the redistricting plan, but, according to Politico, “sent a clear message to lawmakers across the country that the Voting Rights Act can’t be used to justify maps that predominately group voters together based on their race.”

In 2017, Justice Breyer was part of a 5-3 majority that ruled that two congressional districts in North Carolina were unconstitutional racial gerrymanders.

On partisan gerrymandering, however, Justice Breyer has been more hands-off.

According to SCOTUSblog, in a 2016 case regarding maps in Texas and Arizona Justice Breyer explained the U.S. Constitution “requires states to try to distribute residents evenly among legislative districts, but it ‘does not demand mathematical perfection.’” Justice Breyer concluded states can draw districts with populations that aren’t perfectly equal if there is a good reason to do so and the fact that districts aren’t perfectly equal does not mean that a redistricting map violates the U.S. Constitution.

That decision was unanimous, 9-0.

So, while all of the Supreme Court-related focus in Washington this week will be on Judge Brown Jackson, Justice Breyer will still be busy for the next few months.

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