Justice Kagan's Texas Redistricting Dissent - Steve Vladeck

[In It to Win It]

Justice Kagan’s (Mounting) Frustration

As long-time (or even first-time) readers of this newsletter have probably figured out, I use a lot of parentheticals in my popular writing, especially in writing that no one else edits. I’m not sure if I picked up this particular tic from Justice Kagan, or if it’s just a coincidence. But at least for me, it’s often a way to take a subtle (or not so subtle) shot at the subject of the sentence (see what I did there?); or to say something sarcastic in the midst of a more broadly serious point. It’s an outlet for asides that can tend to reflect exasperation.

One of the first things that jumped out to me about Justice Kagan’s dissent in LULAC was its abundant use of these kinds of parentheticals. To be sure, Justice Kagan has plenty to be exasperated about; as little as anyone was or ought to have been surprised by the fact that the majority intervened to put Texas’s new maps back into effect, the way it justified doing so was … maddening. But before turning to the three different flaws in the majority’s cryptic order, it’s worth taking a moment to pause on the stylistic point—this is a dissent that’s not just substantively unsparing; it’s also an opinion that manifests an unusual amount of publicly visible frustration on the part of one of the Court’s most careful (and strategic) writers.

Let’s start with what the majority actually wrote. Although the Court handed down a five-paragraph order, it was the third and fourth paragraphs that contained all of the majority’s “analysis”:

Based on our preliminary evaluation of this case, Texas satisfies the traditional criteria for interim relief. See Indiana State Police Pension Trust v. Chrysler LLC, 556 U. S. 960 (2009) (per curiam). Texas is likely to succeed on the merits of its claim that the District Court committed at least two serious errors. First, the District Court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature. Contra, Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 10 (2024). Second, the District Court failed to draw a dispositive or neardispositive adverse inference against respondents even though they did not produce a viable alternative map that met the State’s avowedly partisan goals. Contra, id., at 34–35.

Texas has also made a strong showing of irreparable harm and that the equities and public interest favor it. “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican National Committee v. Democratic National Committee, 589 U. S. 423, 424 (2020) (per curiam). The District Court violated that rule here. The District Court improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.

As Justice Kagan’s dissent points out, there are three different moves in these two paragraphs, and all three are … problematic.

Today’s “One First” tackles the grant of certiorari in one of the birthright citizenship cases, and then Justice Kagan’s TX redistricting dissent—“yet another warning about the majority’s seeming willingness to do … whatever it wants, at least where rulings on emergency applications are concerned.”

— Steve Vladeck (@stevevladeck.bsky.social) 2025-12-08T12:39:17.482Z