November has seen two big developments in the courts that are of political interest which unfortunately can be characterized as the bad and the ugly.

The bad comes to us from the Eighth Circuit.  Traditionally, the Eighth Circuit has been somewhat on the conservative side, but mostly within the mainstream of traditional conservative thought.  It’s current compositions (by appointing president) is one from Daddy Bush, five from Shrub, one from Obama, and four from Trump.  This past week, a panel of the Eighth Circuit issued an opinion in Arkansas State Conference of the NAACP vs. Arkansas Board of Apportionment.  If you could not tell from the title, this case is a challenge to redistricting in Arkansas under the Voting Rights Act.  The trial judge in the case was a Trump appointee, and, based on a theory currently making its way among the far right, the trial judge dismissed the case on the theory that only the Attorney General can bring a case under Section 2.  In an opinion written by one of the Trump appointees, the panel adopted that theory.  The Trump appointee was joined by a Shrub appointee.  The third judge (a Shrub appointee) dissented.

The basis of the theory of the majority is textualism gone amok.  Technically, there is no express provision in the Voting Rights Act saying that private individuals can challenge district lines.  And, if this were a case of first impression involving just Section 2 and Section 2 had been written today, this argument might make sense.  Currently, courts are very reluctant to infer new causes of action.

There are several problems with this argument.  First, Section 2 dates back to the 1960s.  At that time, courts regular did infer causes of action from statutes, and courts also considered legislative history.  Second, at that time, the U.S. Supreme Court had already granted redistricting challenges brought by private parties.  As such, it is unclear that the Voting Rights Act would have been creating a “new” cause of action rather than simply establishing a new claim within an existing cause of action.  But those are minor things that would matter if a private party was bringing a Voting Rights claims for the first time.  But we have been having Voting Rights Act cases for sixty years, and many of them (including some of the major precedents) have been brought by private parties.  As such, adopting this theory today is not following the existing law, it is changing the law.

There are two good reasons for not changing the law — even if you believe that it would have been a close call under the original text of the Voting Rights Act.  And both have to do with the fact that the Voting Rights Act has come up for renewal on multiple occasions and has been amended on several occasions.   One of the default rules associated with the principle of stare decisis (following precedent) is that courts should grant more precedential value to cases involving statutory interpretation.  The reason for this is that passing a statute is easier than passing a constitutional amendment.  In theory, if the majority of the legislature disagrees with how a court is interpreting the current text, they can change the text to more clearly state what they want done.  And Section 2 is a good example of this.  Originally, the courts required a claimant under the Voting Rights Act to show intentional discrimination against a minority group of voters.  The current version allows claims based on disparate impact.  (In other words, it is enough if district lines result in minorities being underrepresented even if the redistricting body claims that the lines were drawn that way for reasons other than diluting minority voting power.)  Since we now have sixty years of the courts letting private groups bring Voting Rights claim, the failure of Congress to bar such actions when they have previously reauthorized the Voting Rights Act is a good reason to assume that Congress believes that such actions are permitted by the Voting Rights Act.

The other thing has to do with other provisions of the Voting Rights Act.    In 1975, Congress amended Section 3 of the Voting Rights Act (currently codified at Title 52 of the U.S. Code, Section 10302).  Section 3 covers certain remedies authorized when a case is brought under the Voting Rights Act.  Prior to the 1975 Amendment, Section 3 only referred to cases brought by the Attorney General.  The 1975 amendment added the phrase “an aggrieved person” so that these remedies also apply to cases brought by individuals.  While Section 3 does refer to cases brought under Section 4 (codified at Section 10303), it also refers to other claims of violations of voting rights.  At the same time, Congress amended Section 14 (codified at Section 10310) to authorize attorneys fees for private parties that prevail in cases brought under the Voting Rights Act).   The majority in the Eighth Circuit makes an unconvincing argument to claim that these provisions must involve the other parts of the Voting Rights Act, none of which expressly create a cause of action either.

Now, this opinion is simply the decision of a panel of the Eighth Circuit.  The next step will be a motion to rehear the case by the entire Eighth Circuit.  The problem is the number of Trump appointees.  If you add the other three Trump appointees the two judges on the panel who joined this flawed opinion, that give five judges.  That leaves a very narrow path for a majority of the Eighth Circuit to overturn the panel by a 6-5 vote.  If not, the issue will be whether the Supreme Court will take this case.  There are some justices on the Supreme Court that would love to castrate the Voting Rights Act.  But this case is a little like the decision in Dobbs in that the conservatives are better off with decisions that gradually undermine the Voting Rights Act rather than an opinion that essentially tosses it out.  Even taking this case will increase the focus on the Supreme Court’s failure to enforce the Voting Rights Act and could lead to a surge of progressives voting in 2024 (even though a final decision before 2025 is unlikely).

The other issue (the ugly) is the Supreme Court itself.  Earlier this month, the Supreme Court bowed to political pressure and finally adopted a Code of Ethics.  There are two major problems with the Code — the lack of any process for filing complaints about alleged violations and the lack of any enforcement mechanism for violations (other than impeachment which is not a viable enforcement mechanism under current circumstances).  However, the complaints ignore the simple fact that the enforcement mechanism for the rules that apply to other judges was created by statute, and only statutory changes will create a tool to reign in the lack of ethical behavior by some of the current justices.

There are three big problems in current law as it applies to misconduct by Supreme Court justices.  First, the current disciplinary process for all other federal judges is created by statute — Chapter 16 of Title 28.  And the relevant section — Section 351 — excludes the Supreme Court from its scope (by not including justices in its definition of judge).

Second, even for judges covered by Chapter 16, the sanctions available under Chapter 16 are rather limited — effectively a temporary suspension or a reprimand.   Under the Constitution, removal requires impeachment.

Third, current law would create significant problems if a justice were “suspended.”  For every other court, “suspension” has relatively limited effect.  Under Chapter 16, suspension means that the judge does not get any new cases during the period of suspension.  It does not automatically remove them from their current cases.  At the district court level, every district has multiple judges.  While it might create workload issues, that means that some other district judge can hear the case.  And at the appellate level, most initial appeals are heard by a panel rather than the entire court.   Additionally, for appellate panels, Section 46 of Title 28 allows district judges, judges from other circuits, senior judges, current justices, and senior justices to be the third member of the panel.   But there is no equivalent provision for the U.S. Supreme Court.  Instead, Section 1 of Title 28 implies that the Supreme Court may not sit in panels and requires a quorum of six justices to do business.  And there is no provision that allows the designation of a lower court judge to take the place of a justice that has to recuse.  (It should be noted that some states do have provisions to allow special judges to sit in place of a justice on a state supreme court who has to recuse.)

The key thing to note for each of these problems is that, to some degree, Congress has the power to fix these issues.  The Constitution is basically silent on the composition and functioning of the Supreme Court.  Article III merely states that there is to be a Supreme Court.  It does not establish a set number of justices or even say that the Supreme Court is only composed of the justices appointed to it.  While it is arguable that a judge can only be removed by impeachment, that is not expressly stated in the Constitution which only conditions the term of offices of judges on good behavior.  So it is possible that some tribunal other than the legislative branch could hear cases of misconduct and, at the very least, suspend a judge if not remove the judge.   But on this issue, the responsibility for a fix lies with Congress.  It is unrealistic to expect the proverbial fox to guard the proverbial hen house.  While courts frequently will do what they can to encourage members who are no longer competent or are becoming a scandal to either clean up their act or depart, under current law, courts lack the power to do more.  Given that the ultimate enforcer of any self-imposed ethics rules are the judges themselves, who really can expect a vigorous code of conduct, especially when some members of the court have proven that they will stretch any rules past their breaking point.