Supreme Court Set to Hear Two Major Cases Next Week

WASHINGTON — The Supreme Court is set to hear two of the major cases in its current term next week; one that will take a closer look at racial gerrymandering in Louisiana, the other considering federal court jurisdiction over Clean Air Act cases.

The first hearing, on Monday morning, will look at the consolidated cases of Louisiana v. Callais and Robinson v. Callais.

At issue is whether state lawmakers violated the equal protection clause when they created a second majority-Black congressional district after a lower court invalidated an earlier congressional district map on the grounds that it violated the Voting Rights Act.

Typically, a state’s congressional district map is considered to have violated the Voting Rights Act if, under certain conditions, lawmakers could have drawn an additional majority-minority district.

However, at the same time, a state can be found to violate the equal protection clause by drawing a map based on race when the result is not narrowly tailored to meet a compelling government interest.

Judges have long recognized the potential conflict and have sought to avoid it by granting states some leeway in how they can comply with the Voting Rights Act without walking straight into an equal protection clause violation.

During oral arguments on Monday, both sides will essentially be asking the justices to establish parameters for the leeway that can be granted by lower courts.

The controversy began in March 2022, when the Louisiana legislature enacted House Bill 1, a congressional districting plan based on the 2000 census that was composed of six congressional districts.

Of these, just one district, Congressional District 2, encompassing New Orleans and parts of Baton Rouge, could be considered a majority-Black district.

Gov. John Bel Edwards, a Democrat, vetoed HB1 on the grounds that the map diluted the state’s Black vote.

In doing so he pointed directly to the census numbers, which showed 33% of Louisianians were Black at a time when they were represented by only one-sixth of the state’s House seats.

The Republican-controlled legislature quickly overrode Edwards’ veto.

Two sets of plaintiffs promptly sued the state, alleging that HB1 both packed some Black voters in Congressional District 2, while “cracking” others by spreading them across the state’s remaining five districts, diluting their voting power.

A federal judge agreed with the plaintiffs, holding not only that HB1 likely violated the Voting Rights Act, but also that they were likely to succeed in their argument that Black voters could reasonably be included in a second majority-minority district.

In doing so, that judge said a districting map produced by the plaintiffs performed much better than HB1 on the basis of the compactness of its proposed districts, its respect for communities of interest and in the fact it avoided incumbent pairing — all traditional and race-neutral districting criteria.

The state pushed back, arguing the plaintiffs’ map was almost entirely based on race, but the judge disagreed, granted a temporary injunction barring HB1’s use in the 2022 congressional election, and ordered lawmakers back to the drawing board to create a map with an additional majority-minority district.

The 5th U.S. Circuit of Appeals later upheld the lower court’s ruling, but it paused the case to afford the legislature time to create the new districts.

The 5th Circuit also directed the district court to proceed to trial and draw its own maps, if the legislature failed to do so.

During a special session of the legislature held in January 2024, lawmakers drew a new map, SB8, that included two majority-minority districts.

In doing so, it started from scratch — ignoring the proposals the plaintiffs had made in the lower court — in order to preserve the safe seats of House Speaker Mike Johnson, House Majority Leader Steve Scalise, and Rep. Julia Letlow. 

Of the two new majority-minority districts, one encompassed all of metro New Orleans, while the other, now called CD6, ran from Baton Rouge to Shreveport.

Now a group of non-Black voters sued the Louisiana secretary of state, arguing CD6 was an unconstitutional racial gerrymander in violation of the equal protection clause. 

A three-judge district court panel ruled for the plaintiffs and prohibited the state from using its new map, SB8. 

In its ruling, the panel said race predominated in drawing CD6, and that the state did not have good reasons to draw the district based on race in order to comply with the Voting Rights Act.

It also held that CD6 did not sufficiently comply with race-neutral districting principles, like compactness and respect for political subdivisions.

On Monday, the state is expected to argue that the case should be thrown out because the non-Black voters in CD6 have not been harmed by the new map and therefore have no standing to sue.

It is also expected to argue that the plaintiffs have failed to show that race was the primary motivating factor behind the drawing of the new map. And they’ll likely argue that if anyone put the focus on race, it was the federal court and the 5th Circuit, and not the state. 

Finally, even if the justices conclude the plaintiffs have demonstrated race was the predominant factor in the drawing of the new map, the state argues the map satisfies strict scrutiny requirements and should be declared lawful.

In the end, their brief in the case simply asks the justices to “provide clear guidance regarding how states must navigate this notoriously unclear area of the law.” 

The second major case of the week, on the docket for Tuesday, is another consolidated matter, this one seeking to clarify federal court jurisdiction over cases involving the Clean Air Act.

The underlying lawsuits are Environmental Protection Agency v. Calumet Shreveport Refining, LLC, Oklahoma v. Environmental Protection Agency and Pacificorps v. Environmental Protection Agency.

Under the Clean Air Act, judicial review of disputes over nationwide regulations must be reviewed in the U.S. Court of Appeals for the D.C. Circuit. At the same time, however, it also directs that disputes over actions that are regionally or locally applicable be reviewed in the regional circuit courts.

Finally, even if an action is deemed locally or regionally applicable, an exception is written into the act, that says such actions must be heard in the D.C. Circuit when the EPA administrator has concluded the action is “based on a determination of nationwide scope or effect.”

In the cases now before the high court, the Environmental Protection Agency essentially bundled numerous local determinations into a single decision.

If the determinations are viewed as a whole, they would be nationally applicable, and therefore any challenges to them would have to be filed in the D.C. Circuit.

If one were to focus on one of the constituent parts of the decision, then the review of a challenge to it would presumably be handled in the regional circuit courts.

However, at present, the circuit courts are deeply split on the matter.

The 3rd,7th, 9th, 10th and 11th Circuits have all, as a rule, transferred conglomerated actions to the D.C. Circuit, while the 4th, 5th, 6th and 8th Circuits have retained jurisdiction over these actions.

As a result, whichever way the justices rule, the outcome of the case will result in a change in venue choices for about half of the regional circuits.

The plaintiffs in Oklahoma v. Environmental Protection Agency and Pacificorp v. Environmental Protection Agency are specifically asking whether an action taken by the EPA pursuant to a single state or region can only be challenged in the D.C. Circuit if the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.

The plaintiffs in Environmental Protection Agency v. Calumet pose a more industry specific question, asking the justices to decide whether venue for challenges by small oil refineries seeking exemptions from the requirements of the Clean Air Act’s Renewable Fuel Standard program lies exclusively in the D.C. Circuit because the agency’s denial actions were “based on a determination of nationwide scope or effect.”

In all of the cases, the EPA argues its bundling of decisions makes their decisions “nationally applicable” and therefore judicial review must occur at the D.C. Circuit.

The plaintiffs in each case argue that the EPA’s “nationwide methodology” simply doesn’t work and that the individualized legal effect of the agency’s actions makes them unequivocally local.

The states (and small refineries in the latter case) argue what matters is the agency’s application of its review framework to the distinctive and specific circumstances of each state (or small refinery).

In short, they contend that because the EPA’s reviews are innately individual matters, they cannot be “based on a determination of nationwide scope or effect.”

Dan can be reached at [email protected] and on X @DanMcCue