After deciding last week in Callais v. Louisiana that the state could redraw its congressional maps to fully eliminate its majority-minority districts — quite the feat in a state where Black majorities exist geographically and logically centralized in a city like New Orleans — the conservative majority of the Supreme Court is back at it, waiving its own rules to expedite the process. Voting had already started in Louisiana, and while the Supreme Court’s rules require waiting 32 days before issuing a final judgment, the majority rebuffed standard procedure so Louisiana could start the work of drawing wall-to-wall white majority districts.
Justice Ketanji Brown Jackson objected to waiving the 32-day rule and managed to put Sam Alito on tilt in the process.
Is the 32-day rule important? Not really. It exists to give parties an opportunity to petition for rehearing, and no one in this case has shown any interest in a rehearing. Indeed, parties rarely seek a rehearing, meaning the Supreme Court probably doesn’t need this default rule at all. But it has chosen to keep this rule, and what’s more, it has waived this rule even more rarely — only twice before. Justice Jackson penned a dissent based on the simple premise that, if the Supreme Court is going to insist upon this unnecessary rule, there’s no reason to depart from it based on this record.
And Alito lost his absolute mind.
“The dissent in this suit levels charges that cannot go unanswered,” Alito begins, joined by Thomas and Gorsuch, demanding to be heard. It’s the opening salvo in a short concurrence that brands Jackson’s arguments as “trivial” and “baseless and insulting.” It’s a disproportionate response given the dissent’s calm and measured stance that the Court’s own rules should be followed to avoid the appearance of political favoritism that would flow from choosing to jettison a rule that the Court has stuck by in hundreds upon hundreds of decisions.
“The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional,” he complains, noting in a footnote that the case was argued seven months ago. “The dissent does not claim that it is now too late for the state legislature or the District Court to adopt a new map that complies with the Constitution. Nor does the dissent assert that it is not feasible for the elections to be held under such a map.”
The dissent does not at all suggest that the election be held under the newly unconstitutional maps. In fact, Justice Jackson is explicit that she is not claiming Louisiana is incapable of drawing a new map before the election and that’s the point. In her opinion, she’s pretty sure Louisiana can draw a new map a month from now too! The majority had this case for seven months and decided to upend an election after votes had already been cast. The majority’s opinion rests on the assumption that it’s never too late to redraw maps, forcing the obvious follow-up: if seven months and waiting until the election started wasn’t late enough… why not eight?
It’s an uncomfortable question for the majority because it requires grappling with the reality of the Callais decision. Donald Trump pressured Texas into a mid-cycle redistricting process to net five additional GOP-leaning seats in an effort to shore up the narrow Republican majority in the House of Representatives (and a majority poised to become a minority after November’s elections). But it seems Trump and his allies hadn’t counted in states like California and Virginia asking their voters to approve new maps wiping out GOP-leaning districts. Suddenly, a pair of majority-minority districts in Louisiana took on more significance for Republican political operatives.
And six particular Republican political operatives decided to expedite a Louisiana case to give the Red team some more breathing room — even if it came well into an ongoing election process.
More to the point, waiving the 32-day waiting period is less about giving Louisiana an extra month to impose new maps, and more about signaling to the rest of the Deep South that they are free to follow suit immediately. The conservatives on the Supreme Court want Alabama to know that the Court will bulldoze any existing rule that might seem like an obstacle to beginning this process from scratch in May of an election year.
But that’s all the stuff that the majority would prefer remain unsaid. And Alito is enraged that Justice Jackson threw a spotlight on it.
The dissent goes on to claim that our decision represents an unprincipled use of power. See post, at 4 (“And just like that, those principles give way to power”). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3’s 32-day default period should never be shortened even when there is good reason to do so? The principle that we should never
take any action that might unjustifiably be criticized as partisan?
Adverbs, on the other hand, throw a spotlight on weak legal argument. It’s not that every adverb is presumptively evil (see!), but when legal writing becomes littered with gratuitous adverbs, it should raise a red flag. If the underlying claim can stand on its merits, it doesn’t need adverbial scaffolding. “Utterly” and “unjustifiably” are tells.
The word “Purcell” does not appear in Alito’s concurrence. It does appear in Jackson’s dissent, however, where she points out that five months ago this same Court invoked the Purcell principle to scold that federal courts should “not alter the election rules on the
eve of an election.” That was in Abbott v. League of United Latin American Citizens, where the conservatives scolded courts for getting involved in changing election laws that could interfere with Texas stripping Latino populations of representation. Five months ago was too late for courts to interfere to save minority representation, but five months later it’s not only acceptable but necessary for the courts to intervene to restore the Jim Crow order.
Consistency is the hobgoblin of good faith minds.
This is classic Ketanji Brown Jackson. The junior justice takes a lot of heat from angry right-wing critics who cast her as an unqualified diversity hire. It’s all deeply racist, but the critics do generate a lot of traction off KBJ’s confusing and sometimes questionably relevant questions and arguments. Snipped from the surrounding context, some of her points land out-of-blue — who expected a line of questions about Japanese pickpockets in the birthright citizenship case? — but it’s all part of her style.
Jackson slow-plays people, hitting them with a disorienting and unfamiliar premise before teasing them back to the core point, extracting key concessions along the way. It’s a technique likely rooted in her years cross-examining witnesses as an advocate, and it sticks out in appellate practice. But it really rubs arrogant guys the wrong way. It disrupts their planned conversation and makes them more and more agitated as they sink deeper into the quicksand she lays out.
Who really cares if they waive Rule 45.3 in a case where no one seeks a rehearing? No one. But unable to contain their fury, Alito, Thomas, and Gorsuch can’t help themselves but churn out a handful of pages lambasting Jackson. All they manage to accomplish is a testament to the institution’s collapsing legitimacy, as they rage against the prospect of having to explain themselves when Supreme Court “decorum” traditionally allows the justices to issue rulings without having to square these contradictions and hypocrisies. She forced them to try to spin a justification other than Republican operatives using a life-tenured supermajority to engineer a political order that they cannot win at the ballot box. Note that Chief Justice Roberts steered clear of this scuffle. That’s a man who understands the meaning of the maxim that it’s better to say nothing than be thought an inveterate racist than open your mouth and remove all doubt.
Alito and company could’ve just signed the order and not taken the bait. Then again, if Sam Alito wanted Black women to express themselves, he wouldn’t have written Callais.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
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