A legal expert was stunned on Monday by the Supreme Court’s latest “truly unusual” order in relation to the Texas legislature’s effort to redraw the state’s election map.
Steve Vladek, a law professor at Georgetown University, wrote in a new essay for his Substack, “One First,” about the Supreme Court’s order on Monday to “resolve the merits” of Texas’s appeal to a lower court’s ruling that prevents the state from using its new election map.
Texas Republicans forced a new map through the state legislature during a special session last year, but its implementation has been tied up in legal battles. Most recently, a three-judge panel in Texas ruled that the map cannot be used because it constitutes a racial gerrymander, which is illegal under Texas law.
The Supreme Court cleared the way for Texas lawmakers to use the map in a short order that incorporated its previous reasoning from a December hearing. Vladek found the order astounding.
“To be clear, I don’t read Monday’s order as suggesting that the Court was bound by its December order. Rather, I read it as the Court seeing nothing to add to the December order—never mind the powerful (and, in my view, correct) arguments Justice Kagan offered in her dissent from December’s stay,” Vladek wrote.
“In that respect, Monday’s order appears to be a novel extension of how the Supreme Court is using its rulings on the emergency docket as precedent—not for stare decisis purposes, but as the analytical foundation for its subsequent ruling on the merits,” he added. “That strikes me as an entirely worrisome development when the foundation consists of two cryptic paragraphs that have been thoroughly debunked. (And in a case in which the three-judge district court moved heaven and earth to build a detailed evidentiary record in support of its preliminary injunction, a record at which the justices in the majority just waved their hands.)”
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