Justice Alito's marathon arguments in defense of South Carolina's racial gerrymander

Also: The Eleventh Circuit rejected Florida's request that it be allowed to enforce its anti-drag law on appeal.

The U.S. Supreme Court heard arguments on Wednesday in a case over South Carolina’s congressional map.

More accurately, those of us in the courtroom listened to Justice Sam Alito’s nearly non-stop attempt over more than two hours to tell all of us why the justices should reverse a three-judge district court that ruled that the map includes an unconstitutional racial gerrymander. He was joined in making his case by John Gore — the former Trump administration lawyer who’s now at Jones Day and was representing the South Carolina lawmakers defending their map.

I wrote about the arguments for Slate:

Specifically, Alito doesn’t like the “clear error” standard for reviewing the factual findings of the district court here:

As [Justice Ketanji Brown] Jackson explained, under the clear error standard, “A finding [from the district court] that is plausible in light of the full record, even if another is equally or more so, must govern.”

Ultimately, that won’t really matter if Alito has his way. Alito was driven on Wednesday, seeking to undermine—and change—how deferential the “clear error” standard is in gerrymandering cases. Pushing back on the questions that had been posed to Gore by several of his colleagues, especially the three Democratic appointees, Alito stopped to tell everyone that the clear error standard “is not an impossible standard” for South Carolina to meet.

“It doesn’t mean that we simply rubber-stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings,” he said, a reference to the fact that three-judge district court rulings are heard directly on appeal by the Supreme Court. Further still, Alito argued that it matters here that the decision below “relies very heavily, if not entirely, on expert reports.” From there, Alito segued into a question about a specific issue regarding the analysis of one of the plaintiffs’ experts and a question that South Carolina raised in its final brief at the Supreme Court about “an alleged flaw” in that expert’s analysis.

It wasn’t just that Alito doesn’t like the standard — because the district court’s ruling should certainly be upheld under that standard — it’s also that he was incredibly aggressive in opposing the challengers to the map.

I counted and, as I wrote at Slate, Alito “pos[ed] no fewer than 37 questions to the NAACP Legal Defense and Education Fund’s Leah Aden—including a marathon 19-question session taking up 11 pages of the transcript during his final chance to question her. … In comparison to Alito’s 37 questions, the rest of the court—all eight justices combined—asked a total of 28 questions.”

What can I say? It was a bit weird!

If Alito wants to be a district court judge, he’s more than welcome to retire from the Supreme Court and start sitting on district court cases. When it comes to the Supreme Court’s current standard of review, though, the sort of questions Alito was asking are questions that the justices generally aren’t asking—and shouldn’t be asking—in such a case.

As Aden put it at one point, “Are we retrying expert testimony on appeal?”

For Alito and Justice Brett Kavanaugh in particular, it appeared that, for the most part, their answer is yes.

Ultimately, the case will come down to whether the other conservatives go along with Alito and, if they do, how they upend such a basic rule about clear error review to gut yet another aspect of voting rights protections.

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Another Hamburger Mary’s drag win

On Wednesday, the U.S. Court of Appeals for the Eleventh Circuit rejected Florida’s request to enforce its anti-drag law during the state’s appeal of a loss in the district court.

Back in June, the district court ruled in the challenge brought by Hamburger Mary’s of Orlando that the law (S.B. 1438) is likely unconstitutional, including due to its overbreadth. That ruling led the district court to a conclusion that the law is likely unconstitutional on its face — meaning it cannot be constitutionally enforced. As such, the court issued a preliminary injunction that barred any enforcement of the law.

In addition to its appeal of the ruling, Florida Secretary of the Department of Business and Professional Regulation Melanie Griffin asked the appeals court for a partial stay of the injunction during the appeal. As the official responsible for enforcing the law, she argued that the state should be allowed to enforce the law against anyone but the Orlando restaurant that brought the lawsuit.

On a 2-1 vote, the Eleventh Circuit denied Griffin’s request. Judges Adalberto Jordan and Robin Rosenbaum, both Obama appointees, voted against the state’s request. Judge Andrew Brasher, a Trump appointee, would have granted it.

In the court’s opinion, which was just issued for the court and not in any particular judge’s name, it summarizes the issue before it as such:

Honestly, this framing largely answers the question. And yet, largely because of Brasher’s dissent, the panel went into a bit more detail.

Under the overbreadth ruling, the district court ruled the law likely makes illegal certain constitutionally protected activity. The state is challenging that on appeal, but did not take issue with that ruling for the purposes of seeking a stay — which means that Griffin was arguing for the Eleventh Circuit to allow her to enforce a law that is before the court as being likely unconstitutional on its face. And Brasher agreed with that.

As the Eleventh Circuit held on Wednesday, however, citing both Eleventh Circuit and Supreme Court precedent:

The problem for Secretary Griffin is that statutes which are unconstitutionally overbroad are “properly subject to facial attack.” … As a result, a successful overbreadth challenge “suffices to invalidate all enforcement of th[e] law ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the threat or deterrence to constitutionally protected expression.’”

While the court found that there are “cases [that] provide some support for a partial stay” in acknowledgement of Brasher’s dissent, the court also had highlighted other cases where injunctions against all enforcement were upheld. As such, the court — again, representing the votes of Jordan and Rosenbaum — concluded that “given the division of authority in both the Supreme Court and in this circuit we cannot say that the district court abused its discretion.”

Brasher began his dissent by referring to this as a “universal injunction,” attempting rhetorically to lump injunctions of state laws into the same camp as criticism of single district court judges across the country issuing nationwide injunctions halting all enforcement of a federal law or policy (as opposed to just the parties or the district in which the judge sits).

As Brasher delved more directly into First Amendment cases, though, he did detail some instances where courts — including the Eleventh Circuit — have ruled that narrower injunctions were appropriate. And yet, even there, there were some notable citations. At one point, Brasher cites to an opinion by Judge David Stras of the U.S. Court of Appeals for the Eighth Circuit for its criticism of broad injunctions.

That case there involved a challenge to an Arkansas anti-loitering law brought by two men. Although Brasher identified Stras’s opinion as “concurring in part and dissenting in part,” it does not acknowledge that Stras was dissenting as to the argument Brasher is making in his dissent. Stras, too, lost on this point.

In that case, the Eighth Circuit, on a 2-1 vote, upheld “a statewide preliminary injunction preventing Arkansas from enforcing the ban while [the men] pursue their claim that the law violates the First Amendment.”

And, on Wednesday, that is exactly what the Eleventh Circuit did regarding the challenge to Florida’s anti-drag law.