Justice Elena Kagan appeared to take a shot at fellow Supreme Court justice Samuel Alito's upside-down American flag in her dissent to a ruling on South Carolina's gerrymandered election map.
The conservative majority ruled 6-3 in favor of the state government in a challenge by the NAACP to South Carolina's redrawn congressional map, arguing that it was gerrymandered to dilute the number of Black voters, but Alito wrote that the Republican-controlled legislature had not violated the Constitution to ensure Rep. Nancy Mace's (R-SC) district would remain reliably safe for GOP candidates.
"The Challengers provided no direct evidence of a racial gerrymander, and their circumstantial evidence is very weak," Alito wrote in the majority opinion. "Instead the Challengers relied on deeply flawed expert reports. And the Challengers did not offer a single alternative map to show that the legislature’s partisan goal could be achieved while raising the [Black voting-age population] in District 1."
Kagan disagreed, saying the challengers had "introduced more than enough evidence of racial gerrymandering to support the District Court’s judgment," and she appeared to make reference to a MAGA symbol Alito claims his wife displayed outside their home shortly after the Jan. 6 insurrection to fault the conservative majority's failure to properly explain its decision to uphold the map.
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"The majority invents a new rule of evidence to burden plaintiffs in racial-gerrymandering cases," Kagan wrote. "As of today, courts must draw an adverse inference against those plaintiffs when they do not submit a so-called alternative map — no matter how much proof of a constitutional violation they otherwise present. Such micro-management of a plaintiff ’s case is elsewhere unheard of in constitutional litigation."
"But as with its upside-down application of clear-error review, the majority is intent on changing the usual rules when it comes to addressing racial-gerrymandering claims," Kagan added.
