The Cases the Supreme Court Really Doesn't Want to Hear?

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By Kimberly Strawbridge Robinson and Nicholas Datlowe

Sept. 7 — The U.S. Supreme Court justices may not want to hear two redistricting disputes next term, but they'll have to anyway.

The high court generally has a great deal of leeway over its case load, but there are some cases they must accept.

Two statutes, 28 U.S.C. §§1253 and 2284(a), require the court to hear “reapportionment cases,” which deal with how states divvy up their territory for federal and state elections.

That's “a serious problem because there are a lot of cases that come up,” via these statutes that would be the kind of case that the court “might deny cert in, to let the issue percolate,” Chief Justice John G. Roberts said in 2015. But “no, we have to decide it on the merits,” he said.

Nevertheless, both liberals and conservatives have used the special procedures associated with these redistricting cases to advance their causes at the Supreme Court, David H. Gans , the director of the progressive Constitutional Accountability Program's Human Rights, Civil Rights & Citizenship Program, Washington, told Bloomberg BNA in an e-mail Sept. 2.

Reining in ‘Judicial Activism.'

The court's mandatory review in redistricting cases has its roots in Ex Parte Young, 209 U.S. 123 (1908).

In that case, the Supreme Court said that a federal judge could stop a state attorney general from enforcing an unconstitutional state statute, even in light of sovereign immunity doctrines, which limit suits against states, University of Cincinnati College of Law professor Michael Solimine wrote in a 2008 law review article.

Ex Parte Young and its progeny were harshly criticized for their perceived usurpation of state authority, Solimine, an election law and civil procedure professor, said.

But “the legislative response,” the 1910 Three Judge Court Act, “was a relatively modest and procedural one,” Solimine wrote.

Under the act, a three-judge district court must “be convened to hear a case in which plaintiffs sought to enjoin, on constitutional grounds, an official enforcing a state statute,” Solimine wrote. “The court would consist of the judge before whom the case was originally filed, plus two other judges, one being a circuit judge.”

The suits were directly appealable to the U.S. Supreme Court.

These procedural safeguards were seen as a mechanism to rein in perceived judicial activism by federal courts, Solimine told Bloomberg BNA Aug. 8.

Toppling Jim Crow

During the Warren Court in the 1950s and 1960s—when direct appeals were more widely available than they are today—“civil rights litigants widely relied on the ability to go directly to the Supreme Court,” Gans said.

Direct appeals to the Supreme Court “helped ensure that civil rights cases reached the Justices quickly,” Gans wrote in a 2015 article.

“Indeed, the NAACP, under the leadership of Thurgood Marshall, and other civil rights litigators time and again appealed directly to the Supreme Court to help topple Jim Crow and to establish the one person, one vote principle,” he wrote.

Courts' Lobbying Efforts

Despite these advantages for civil rights litigants, the judiciary intensely disliked the Three Judge Court Act.

Panel judges complained that the act wasted judicial resources, Solimine said. And Supreme Court justices complained that it clogged up their case load, he added.

During the 1971 Supreme Court Term, cases before three-judge courts were only 2.7 percent of the cases on the district courts' dockets, but constituted 22 percent of the cases argued before the Supreme Court, “even though many of those cases were not of sufficient importance or novelty to warrant plenary consideration by the Court,” according to a leading treatise on Supreme Court procedure, Stephen M. Shapiro et al., “Supreme Court Practice” §2.III.7 (10th ed. 2013).

Congress responded in 1976, after the justices of the Supreme Court lobbied for the three-judge panels to be eliminated, Solimine said.

Reducing Appeals

Congress ended three-judge panels and direct Supreme Court appeals for most types of cases, Solimine said.

The repeal of the law has reduced direct appeals to the Supreme Court “from 211 in the 1971 Term to 61 in the 1981 Term, to 16 in the 1991 Term, and to fewer then 10 each term over the past decade,” Supreme Court Practice said.

The direct appeals the court does still hear sometimes come from specific statutes that require a three-judge panel and direct Supreme Court review.

One of the most notable of those is the Bipartisan Campaign Reform Act of 2002.

The Supreme Court's controversial campaign finance decision in Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) arose out of that statute.

‘Radically Different.'

“In the hands of conservative activists, immediate appeal to the Supreme Court has been a potent weapon for deregulating campaign finance law and gutting the Voting Rights Act,” Gans wrote in 2015, pointing to Citizens United.

They've been such an effective tool because direct appeals to the Supreme Court are “radically different” than the typical federal case,” he wrote.

“Cases decided by a single federal district court judge, which make up the vast majority of federal cases, go through a lengthier judicial process if appealed, including review by the federal court of appeals, and are very rarely accepted for Supreme Court review,” Gans wrote.

“Appeal to the Supreme Court is discretionary, and notoriously difficult to obtain,” he wrote. “Moreover, the Supreme Court has complete control over its certiorari (discretionary) docket, and can refuse to hear a case for any reason without setting any judicial precedent for the future.”

But under 28 U.S.C. §1253, “the Supreme Court is required to act on a direct appeal from the decision of a three-judge court,” Gans wrote.

“When such an appeal is filed, the Justices have three options—either to summarily affirm, to dismiss the appeal for want of a substantial federal question, or to accept the case for full review.”

“Unlike a denial of a petition for a writ of certiorari, each of these actions sets a precedent for the future,” Gans wrote.

“Because the Justices are often wary of setting a precedent without full briefing, direct appeals from three-judge courts quite often receive full review on the merits,” he wrote.

Conservatives have used this fact to get “blockbuster campaign finance and voting rights cases to the Supreme Court,” Gans wrote. And it's “a strategy that has paid off time and again,” he wrote.

Pendulum Swinging?

But that may change soon, Gans told Bloomberg BNA.

If the composition of the court shifts in a more progressive direction as a result of Justice Antonin Scalia's death Feb. 13, “we will likely see fewer challenges to federal campaign finance laws, which have repeatedly come up to the Roberts Court by way of direct appeals,” Gans said.

Conservative activists may be more hesitant “to bring a direct appeal to a more progressive Supreme Court,” he said.

In the two redistricting disputes the court will hear this term—both brought by liberal groups—redistricting maps from Virginia and North Carolina have been challenged as diluting minority voting power ( Bethune-Hill v. Va. State Bd. of Elections, 84 U.S.L.W. 3664, U.S., No. 15-680, review granted 6/6/16 (84 U.S.L.W. 1815, 6/9/16) and McCrory v. Harris, 84 U.S.L.W. 3702, U.S., No. 15-1262, review granted 6/27/16 (84 U.S.L.W. 1945, 6/30/16).

Such redistricting disputes make up the bulk of direct appeals that the Supreme Court now hears.

That's because 28 U.S.C. §2284(a), requires a three-judge district court panel “when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”

Despite doing away with three-judge district court panels and direct appeals for most kinds of cases, Congress saw reapportionment cases as just too vital to democracy to remove these procedural safeguards, Solimine said.

Requiring three judges, instead of one, to initially consider the case, with the Supreme Court as a backstop, was thought to give redistricting more legitimacy, he said.

Keeping Them Focused

Chief Justice Roberts lamented these kinds of direct appeals, however, during arguments in a 2015 redistricting dispute, Shapiro v. McManus, 84 U.S.L.W. 4015, 2015 BL 401721 (U.S. Dec. 8, 2015) (84 U.S.L.W. 811, 12/15/15).

During oral argument he said that the direct appeal mechanism didn't allow the Supreme Court to see how the issue played out in the lower appellate courts before having to decide the issue itself.

The lack of reasoning from other judges is one big downside of direct appeals, Solimine said.

But, the “use of three judge courts, together with direct review in the Supreme Court, helps to ensure expeditious resolution of important issues,” Gans said.

For example, when the justices decide the two redistricting cases set for next term, they will principally be looking at a case that was just decided in 2015, Ala. Legislative Black Caucus v. Alabama, 83 U.S.L.W. 4210, 2015 BL 82479 (U.S. March 25, 2015).

And the relatively speedy review keeps the law developing in that area, Solimine added.

To learn more about the redistricting cases the high court will hear next term, check out Bloomberg BNA's “Cases and Controversies” podcast at

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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