Samuel Alito Reveals His GOP Partisan Bias


The Supreme Court likes to hide behind its popular mythology as a body of disinterested legal minds above the political fray. The court is not made up of Republicans or Democrats, but rather nonpartisan actors. The judges are akin to baseball umpires, simply calling “balls and strikes” with no interest in the outcome, as Chief Justice John Roberts said during his confirmation hearing in 2005.

And then sometimes judges drop the mask to reveal their own personal partisan preferences. This is what Judge Samuel Alito did in two recent election law cases when he sided with the Republicans over the Democrats by adopting opposing standards in two cases presenting similar facts.

The first case involved an emergency petition by Republicans in Alabama challenging a federal district court ruling that found the state violated voting rights law by failing to draw a majority black second district on the Congress card he had adopted.

In February, five conservative justices approved the emergency request to block the lower court’s decision in February, while the court’s three liberals dissented with Chief Justice Roberts. In blocking the map reshuffle of Alabama’s congressional district, conservatives argued it was too close to the state’s May 24 primary election for a court to change a fact about them. It’s the so-called “Purcell Principle” that court conservatives have increasingly invoked during the COVID-19 pandemic to undo judicial efforts to interpret election law in 2020.

“This principle – known as the Purcell principle – reflects a fundamental tenet of election law: when an election is near, the rules of the road must be clear and established,” Judge Brett Kavanaugh wrote in a concurring opinion. joined by Alito. “Belated judicial tinkering with election laws can lead to unintended and unfair disruption and consequences for candidates, political parties, and voters, among others. It’s one thing for a state to mess with its election laws on its own near a state’s election. But it’s quite another thing for a federal court to step in and rewrite a state’s election laws in the run-up to an election.

Here we see Alito agreeing that a court-ordered change to an election cannot be made when it is close to an election. But a month later, he took the opposite position. The main difference was which side the Republicans and Democrats fell on.

On Monday, the court denied an emergency request to prevent a congressional district map drawn by a state court in North Carolina from taking effect. Republicans had asked the court to prevent implementation of the court-drawn map by endorsing a sweeping legal theory that state legislatures — and only state legislatures — have a say in defining the lines district and election law.

“Plaintiffs will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the map of Congress in their state, and the public interest will be served if the 2022 congressional elections in North Carolina take place using districts that we ultimately determine were unconstitutionally imposed,” Alito wrote in a dissent.

In one case, North Carolina Republicans wanted the court to reject a map of the congressional district drawn by state courts.

Gerry Broome via Associated Press

So in a case where Republicans would benefit from asserting Purcell’s principle that federal courts do not change election law or district maps too close to an election, Alito sided with Republicans. In the other case, where the Republicans would benefit from not applying the same principle and allowing a federal court, in this case the Supreme Court, to modify the conditions of the election – an election taking place on a date earlier than the other case – Alito sided with the Republicans.

Maybe the date of the election is not the best date to judge whether the election is too close or not.

In his concurring opinion, Kavanaugh, joined by Alito, pointed out that mail-in ballots in Alabama, which are heavily restricted, can be cast as early as March 30. But North Carolina, which allows all voters to vote by mail, is making mail-in ballots available March 28, two days earlier than Alabama. Additionally, early voting in North Carolina begins April 28 — nearly a month before in-person voting is allowed in Alabama.

One important difference though is that the North Carolina case revolved around whether the state court that drew the map of the state’s congressional district was even allowed to do so in the first place. According to a strong reading of the independent state legislature doctrine that Alito endorses, state courts have no role to play in redistricting or in judging whether an election law passed by a state legislature violates their respective state constitution.

“Plaintiffs will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the map of Congress in their state, and the public interest will be served if the 2022 congressional elections in North Carolina take place using districts that we ultimately determine were unconstitutionally imposed,” Alito wrote.

But, again, Alito’s belief that state courts have no say in interpreting how their state constitutions apply to district maps or election laws passed by their state legislatures contradicts an opinion he joined just three years ago.

In the 2019 decision in Rucho v. Common Cause, five conservative justices, including Alito, ruled that federal courts had no role in judging whether or not a congressional district card amounted to an inappropriate partisan gerrymander. Instead, state courts were the ones with the power to judge these cards.

“[P]Provisions in state statutes and constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in the Rucho decision.

Alito’s endorsement of the doctrine of the Independent State Legislature is in direct conflict with this ruling which he joined. But that’s no surprise. Just look at who wants the court to rule as it did in the Rucho decision: the Republicans.

Previous The Birmingham Civil Rights Institute will host a tribute to the Reverend Shuttlesworth on March 18
Next Maria Prymachenko's paintings were almost destroyed by Russian forces. Now they become global symbols of peace