Chief Justice Roberts (04:19):
We will hear argument first this morning, Case 24-109, Louisiana versus Callais, and the consolidated case. Mr. Aguiñaga.
Mr. Aguiñaga (04:30):
Thank you, Mr. Chief Justice, and may it please the court. Louisiana would rather not be here. We didn't want to be in the emergency docket in 2022. We didn't want to be on the emergency docket in 2024. And today, I mean, God bless my friends on both sides of this case, but we'd rather not be caught between two parties with diametrically opposed visions of what our congressional map should look like. But this has become life as usual for the states under this court's voting cases. And our fundamental question today is how do we get out of this predicament? Now, I think there are at least three ways to do that. First, you should reverse on standing grounds because the only theory of harm in the red brief is that our Black representative of District 6 will play into racial stereotypes by favoring the Black voters of District 6.
(05:17)
Second, you should reverse on racial predominance because the district court wrongly assumed that our intentional creation of a majority Black district in light of the Robinson decisions automatically established racial predominance. And third, you should reverse on the good reasons inquiry because the district court wrongly, in our view, believed that the Robinson decisions play no role in the strong basis in evidence inquiry. And in the end, I want to emphasize that the larger picture here is important because in an election year we faced the prospect of a federal court drawn map that placed in jeopardy the Speaker of the House, the House Majority Leader, and our representative on the Appropriations Committee. And so in light of those facts, we made the politically rational decision. We drew our own map to protect them. This Court's breathing room precedents allow that decision. I welcome the Court's questions.
Justice Thomas (06:10):
So as I understand your argument, you accept we are to accept that the courts, the Robinson Court, required that there be two districts and that your only interest is in preserving two incumbents in Northeast Louisiana.
Mr. Aguiñaga (06:29):
That's correct, your honor. I mean we have two Article III court decisions that say the VRA likely requires Louisiana to draw a second majority Black district. Those were the facts presented to us. In light of those decisions, we said, "Well, we can't allow the federal court to draw the Robinson illustrative maps because that would've placed Julia Letlow in a majority Democrat district." And so we took matters into our own hands and said, "We're going to protect our most high-profile incumbents, draw our own map that ensures that Speaker Johnson and Representative Letlow remain in Congress."
Justice Thomas (07:00):
So in order for us to use that line, wouldn't we have to accept that the district court was right, the Robinson Court was correct?
Mr. Aguiñaga (07:13):
Your Honor, I think the way this case has been litigated, the way it comes to the court, the plaintiffs have not put on a pseudo VRA case to say that the Robinson Courts were wrongly decided. I mean, of course, as you know in the Robinson litigation, we took the position that we should have prevailed. We lost. We lost on those arguments. And at the end of the day, I think in the strict scrutiny analysis that this Court's case has set out, the question is do we have a good reason in relying on what the federal courts told us that the VRA likely required? And I think that's the fundamental error. If you look at pages 53A to 66A of our JS appendix, that's the district court's good reasons analysis. It says not one word about the Robinson decisions. And with all respect to the district court, I think that's not how the good reasons inquiry runs.
(07:58)
I mean, I think fundamentally when you have Article III courts telling you that this is what the VRA likely requires, a rational state is going to run with exactly what the federal court says. We're in the business of complying with federal court decisions. And when they told us that we needed to draw a second majority Black district, that's what we did. And I want to go back to the larger context because I think that's the important factual backdrop here, which is we're in an election year, it's 2024, the Fifth Circuit, if you look at page 601 of its decision, the Fifth Circuit says "You have a few weeks to now that we have affirmed the District court's likelihood of success in the merits finding. You have two weeks, a few weeks to go back, consider drawing your own map."
(08:36)
And it's an election year. We're talking about the Speaker of the House. No rational state gambles with those high stakes seats in that situation. And our request to this court is to say, "Well, given that unique circumstance where you have two layers of Article III courts telling a state what the VRA likely requires, that is a good reason for the district, for the state to do what it did."
Chief Justice Roberts (08:57):
Well, I mean, do you think the Robinson Court was correct?
Mr. Aguiñaga (09:02):
Your Honor, in our heart of hearts, we've never shied away from our position in the Robinson decisions, which is that we should have prevailed. At the end of that litigation, in the preliminary injunction stage, we lost. And so we faced a choice. Do we take a gamble and go to trial, lose at final judgment, endure a court-drawn map and hope that an appellate court will then step in on the back end of the process and save us from the federal court-drawn map? Or do we say that the court said what they said, what the VRA likely requires? Can we work with that and find a way to save our incumbents on our own? And so your Honor, I am not going to stand here and say that the Robinson courts were right, but I will say that what is set in stone is what they said. That is the law. And we took that as gospel and went back to the drawing board and drew District 6.
Justice Kavanaugh (09:46):
One of the arguments that the appellees raise is that there's a durational limit on the authority of Section 2 to force states to create additional majority-minority districts. I think that's pages 36 to 38 of the appellee's brief. I know that the state of Louisiana in separate litigation is taking exactly that same position as I understood it and read it. And I'm wondering what you think we should do with the appellee's argument about the durational limit here.
Mr. Aguiñaga (10:23):
Sure. A couple of things, Justice Kavanaugh. The first thing I think you do is you disregard it because until the Red Brief plaintiffs in this case never disputed this court's assumption that compliance with the VRA is a compelling interest. So I think that part of the brief where they talk about what we're arguing in another case, that's really beside the point here because they forfeited that compelling interest argument. But on the merits, absolutely. In the Nairn case, our position is that in Louisiana, at least as applied to Louisiana, Section 2 is unconstitutional. The reality today is we've lost that argument so far and we are duty-bound to comply with the VRA and especially in this context where you have federal court decisions telling us what the VRA likely requires. I don't think there's any serious argument that that is not a compelling interest that we do not have a compelling interest in complying with the federal courts have told us.
Justice Kavanaugh (11:09):
And that's separate litigations now in the Fifth Circuit, is that correct?
Mr. Aguiñaga (11:13):
It's in the Fifth Circuit in the Nairne case, the Fifth Circuit panel heard oral argument in January. That issue may well be before this court. The ultimate unconstitutionality issue may well be before this court this fall. But at least as things stand now, we're duty-bound to comply with the Voting Rights Act. And when a district court and a panel in the Fifth Circuit say the Voting Rights Act likely requires you to adopt a second-majority Black district, we're going to do that, Justice Kavanaugh.
Justice Alito (11:37):
What if the Robinson decision were plainly wrong? Let's say it didn't apply Gingles at all. Would you still have a good reason to follow it?
Mr. Aguiñaga (11:49):
No, Justice Alito. And I think that goes to--I know the United States withdrew its brief in this case, but I think that's the sort of unusual circumstance that provides a very, very narrow exception to our position, which is you can imagine an extreme case where the VRA courts just wildly got the law wrong, got the facts wrong, and nobody, as an objective matter, nobody would agree that that was a circumstance where a state could reasonably rely on those decisions.
Justice Alito (12:15):
What if it weren't wildly wrong? They didn't just ignore Gingles, but it's wrong. You look at it and it's wrong. They misapplied something.
Mr. Aguiñaga (12:24):
And your honor, I think that the less wildly wrong the decision becomes, I think the harder it is for a plaintiff like plaintiffs in this case to come in on the back end in an Equal Protection Clause case and say we should just relitigate what happened in the VRA litigation all over again. And that didn't happen in this case. I mean, nothing prohibited plaintiffs from coming to the district court and putting in all the evidence to say, if you actually look at what was in the record in Robinson, flat wrong, you should just relitigate what happened in the Middle District and the Fifth Circuit. They didn't do that. I think that option is available to plaintiffs in future case.
Justice Alito (12:57):
All right. Thank you. Thank you.
Justice Sotomayor (13:02):
I'm sorry. You are saying in this case they didn't argue Robinson was wrong?
Mr. Aguiñaga (13:07):
Your Honor-
Justice Sotomayor (13:08):
They didn't put in any evidence to relitigate the Robinson issue?
Mr. Aguiñaga (13:12):
Justice Sotomayor, they did not put on the full panoply of evidence that was in the Robinson litigation.
Justice Sotomayor (13:16):
They say you bear that burden.
Mr. Aguiñaga (13:18):
Your Honor, our burden was to show that we had a good reason for enacting District 6. And our position is that you have two Article III court decisions that go through Robinson plaintiffs' likelihood of success on the merits. That itself is based on the evidentiary record in the Robinson litigation, almost 400 docket entries in the district court in the Middle District.
Justice Sotomayor (13:39):
I'm taking a step back. Okay. If they had said that Robinson was wildly wrong, they would've relitigated in front of the district court based on the very voluminous district court decision. It was over 150 pages filled with the arguments on both sides, right?
Mr. Aguiñaga (14:00):
That's exactly right, your Honor.
Justice Sotomayor (14:01):
But what they came in and said instead was merely because you were trying to comply with Robinson that showed you let race predominate, correct?
Mr. Aguiñaga (14:13):
That's correct, Justice Sotomayor.
Justice Sotomayor (14:15):
So their approach wasn't saying relitigate Robinson, they're just saying that's not a compelling state interest.
Mr. Aguiñaga (14:21):
That's correct, Justice Sotomayor. And our position here is that can't be right. I mean, this court has never seen a set of circumstances where you have federal courts telling a state "This is what the law likely requires of you." And then-
Justice Sotomayor (14:32):
But we do have at least three cases that say you don't have to be right on whether you needed to comply with Title II, you just have to have a good faith basis. Correct?
Mr. Aguiñaga (14:43):
That's right, Your Honor. You have a case, for example, you look like at a case like Bush versus Vera, a case that says the state doesn't have to draw the precise compact district that a VRA court would have drawn. Or you look at a case like Bethune-Hill that says a state doesn't have to show that it would've lost at trial but for its use of race. I mean, that's the sort of breathing room and flexibility that this court's cases bake into the analysis.
Justice Sotomayor (15:06):
Now we have at least three cases that have said unlike what the District Court said here, the district court said that the reason why race predominated is because you decided to comply with Section 2, correct?
Mr. Aguiñaga (15:20):
That's correct, your Honor.
Justice Sotomayor (15:21):
And in at least three cases we've said that's not the starting proposition, correct?
Mr. Aguiñaga (15:27):
That's correct, your Honor.
Justice Sotomayor (15:28):
One of them Bethune- Hill.
Mr. Aguiñaga (15:33):
That's correct. This court has said-
Justice Sotomayor (15:35):
But we have said that once you try to comply with Section 2, that the new map you create has to substantially address the likely Section 2 violation.
Mr. Aguiñaga (15:51):
That's correct, your Honor.
Justice Sotomayor (15:52):
All right. How does the map that you enacted do that? We know the Robinson map was more compact, followed more traditional criteria than the legislature's first created map. Okay. So we know that that would've resolved the Section 2 violation using traditional criteria. One of their arguments here and one that the district court pointed to, but wait a minute, this map's different and it doesn't fit all the criteria. So how do we say that that follows our guidance?
Mr. Aguiñaga (16:33):
Mr. Chief Justice, may I answer?
Chief Justice Roberts (16:35):
Certainly.
Mr. Aguiñaga (16:36):
So Justice Sotomayor, I think you begin with the Robinson illustrative maps as a baseline and you ask, how closely does the state's enacted map approximate what the Robinson illustrative map looked like and did? And then if it deviates, you ask, that substantially addresses question. Well, why did the state deviate and did it deviate so much that the state's map doesn't actually substantially address the baseline violation identified in Robinson? And the reason the answers to those questions in this case, the only reason we deviated from the Robinson illustrative map is to protect our high-profile incumbents. And then the substantially-
Justice Sotomayor (17:11):
But both maps created seven voting districts, correct?
Mr. Aguiñaga (17:15):
We have six districts, correct, Your Honor.
Justice Sotomayor (17:17):
I'm sorry.
Mr. Aguiñaga (17:18):
Both maps created two majority Black districts.
Justice Sotomayor (17:19):
Two majorities, but both of them relied on the same district having the same number of districts?
Mr. Aguiñaga (17:25):
That's correct, your Honor.
Justice Sotomayor (17:27):
And 70% of District 6's, which was 70% of the Robinson map, correct? District 6?
Mr. Aguiñaga (17:37):
That's correct, your Honor. The very core of District 6 is the very core of the Robinson illustrative maps.
Justice Sotomayor (17:42):
We have also said very clearly that if two reasons coexist, race and politics, that 50/50 means that race doesn't predominate, correct?
Mr. Aguiñaga (17:56):
That's what this Court's precedents say, your Honor.
Justice Sotomayor (17:59):
Thank you.
Chief Justice Roberts (18:00):
Thank you, counsel. Justice Thomas? Justice Alito? Okay. Justice Kavanaugh?
Justice Kavanaugh (18:09):
What's the limit on that in terms of your answer to Justice Sotomayor? 50%? 40%? 30%? And what kind of guidance do you think we could give? Because one of the legitimate concerns of your brief and the amicus briefs are to give clear guidance. What do you think the limit is on taking the political considerations into account in fashioning a remedial district that substantially addresses the violation?
Mr. Aguiñaga (18:41):
Well, I think one of the limits, Justice Kavanaugh, is numerical, right? I mean, in Shaw 2, the court said that a 20% overlap was insufficient. In LULAC, less than 50% was insufficient. Here we're in the neighborhood of 70%. So I think as a numerical matter, that's going to be one pretty clear guidepost for the lower courts on how closely a state is approximating the illustrative map. And then I think the other thing is just to really assess why the state deviated from the baseline map. And I think that's one of the things where I don't know that there's any dispute in this case on both sides why we didn't adopt SB4. We adopted SB8. The sole reason in Senator Womack's own statements is SB8 was the only map that would protect our high-profile incumbents.
Justice Kavanaugh (19:24):
So the rule I think you want is political considerations are fine to take into account in doing the map, the second map and 50s kind of a floor on that?
Mr. Aguiñaga (19:36):
I think so. I mean, this court has never spelled out what substantially addresses means as a numerical matter. And to my mind, if I'm between 60 and 80%, I think that's substantial but obviously a judgment call for this court.
Justice Kavanaugh (19:48):
Thank you.
Chief Justice Roberts (19:49):
Justice Barrett?
Justice Barrett (19:50):
I just want to be sure I understand your question to Justice Alito. Justice Alito asked you if the Robinson decision was patently wrong, could it still be a good reason? And you said, " Well, if it was patently wrong, no, but we were obeying the federal court orders. This wasn't patently wrong." What is the point at which, because it's an odd situation, right? Where the later district court has to essentially take as preclusive the earlier district court's determination of the Section 2 violation, right? But it's not entirely preclusive because you left room for the later court to say, "Well, that was patently wrong, so we're not going to follow it." What is the line?
Mr. Aguiñaga (20:27):
So I think there are two ways in which it's not automatically preclusive, Justice Barrett. I think the first is regardless of what the earlier court decisions say, when the state acts, it has to substantially address the baseline violation. So that's one way in which if we failed to do that, if we adopted an SB8 map that had only 20% overlap with the Robinson illustratives, then that's one way in which the VRA decisions are not preclusive here. We lose this case.
(20:50)
I think the other way, and I think this is what your question was getting at, is that in the wildly wrong case, I think we can't dispute that there may be some case where objectively on both sides of the aisle everybody agrees that the court just got the law and the facts wrong. I think that's a case we have to give up and we're happy to give it up. But barring that case, when a federal court, two federal courts tell a state what the law requires, to me, that means that there should be a very, very high bar in this court's precedence for second-guessing what those federal courts say. And I think you just leave that hypothetical out there as a potential odd case that may never arise, but we acknowledge that it is out there.
Justice Barrett (21:33):
I mean, is it also because of the position that it puts the state in here? I mean, it's not just a matter of your obedience to the federal court order, which I appreciate you would be obedient to the federal court order, but it's also that if you had continued to litigate the Robinson… If you had continued to litigate in Robinson, you risked having the court-imposed map. And so it's really your litigation risk that's part of the calculus here?
Mr. Aguiñaga (21:55):
That's one risk, your Honor. I think it's both litigation risk and political risk. Because remember, if you look at page 601 of the Fifth Circuit's decision, they say, "Now that we have affirmed the district court on the merits, we don't doubt that the legislature might want to take this opportunity to draw a new map now. And here's a deadline, January 15th, 2024." You call that litigation risk. You can call that political risk, whatever it is, it's forcing the state to make a call.
Justice Barrett (22:17):
Let's wrap up together. Yeah.
Mr. Aguiñaga (22:18):
That's correct.
Justice Barrett (22:18):
If you're going to lose, then you risk that the district court's going to impose a map on you.
Mr. Aguiñaga (22:23):
That's exactly right, Justice Barrett.
Justice Barrett (22:25):
Okay.
Chief Justice Roberts (22:26):
Justice Jackson?
Justice Jackson (22:27):
So can I just clarify? There's no dispute that the court's order was the reason that Louisiana did this, did the new map, right?
Mr. Aguiñaga (22:37):
Mr. Greim can correct me if I'm wrong, but I don't think so, your Honor.
Justice Jackson (22:40):
And the question is whether or not the fact that you had a court order was a good enough reason for you to do it, is that what you understand the basic question to be?
Mr. Aguiñaga (22:50):
That's correct. Not just one order, but two layers of orders. Yes, your honor.
Justice Jackson (22:53):
And I guess I'm still a little confused as to why it matters whether the court order was right or not. You were still being compelled by the court to do what you did in this case, correct?
Mr. Aguiñaga (23:08):
That's correct, Justice Jackson. And I guess all I was trying to… The point I was trying to drive home is that you could imagine, and I think that's why the United States withdrawn brief calls it an unusual circumstance where the VRA decisions were just wrong, just plainly wrong and nobody would rely on them. But this is nowhere close to that. It may well be that this court never sees a situation where that sort of wildly erroneous-
Justice Jackson (23:30):
But I guess that hypothetical invites us to even engage in and question an inquiry as to whether or not this was a wildly wrong case. And I'm just worried about that as a way of going about handling this sort of situation. I mean, Justice Barrett points out that we have a prior court order, you say, and it's clear that it was affirmed by the Fifth Circuit that to a certain extent, it is preclusive on the facts of whether or not there's a likely VRA violation here. And having a likely VRA violation is all that was necessary for the state to take the steps that it did. So I just don't know that we need to even engage in the thought process of what if the court order was wrong? I mean, it existed and if it existed, then it seems to me that there is a good reason for Louisiana to have followed it.
Mr. Aguiñaga (24:30):
I think that's exactly right, Justice Jackson. And that's why that may well be the unicorn case. The unicorn case that says black is green. Nobody objectively agrees with that, but that case may also never arise. If I-
Justice Jackson (24:42):
Let me ask you about substantially addressed the violation. Was that something that the district court addressed in this case? I didn't see that as part of its analysis. And isn't that another basis for finding error here?
Mr. Aguiñaga (24:54):
It did not, your Honor. And yes, that is an independent legal ground for finding error, and that's why I pointed the court to, if you look at pages 53A to 66A of our JS appendix, that's the good reasons analysis. And you see nothing about Robinson there. You see nothing about the Robinson illustrative maps. With all due respect, that factual background is what explains SB8. And so you can't assess the legality of our map without referring as a baseline to the comparison against the Robinson litigation.
Justice Jackson (25:24):
Thank you.
Chief Justice Roberts (25:24):
Thank you, counsel. Mr. Naifeh.
Mr. Naifeh (25:33):
Mr. Chief Justice, and may it please the court. This court has been clear that states have breathing room to take reasonable efforts to comply with the Voting Rights Act, and they may also balance the many other interests that enter the redistricting calculus. And so it was perfectly appropriate after two federal courts had found that Louisiana had likely violated Section 2, that the state sought to comply with those rulings and that it exercised its authority to protect favored incumbents and unite preferred communities of interest.
(26:06)
And accounting for those kinds of political considerations is squarely the legislature's prerogative and breathing room ensures that courts don't unnecessarily intrude on the legislative domain simply because the state is attempting to comply with the Voting Rights Act. But the district court did exactly that in finding that the state's chosen remedy for the violation shown in Robinson was unconstitutional and it committed three errors in doing so.
(26:34)
First, it treated the intent to comply with the Voting Rights Act as inherently suspect. Second, it dismissed Robinson as a good reasons for the state to engage in remedial districting. And third, it demanded that the state's chosen remedy maximize compactness and compliance with traditional redistricting principles even when that precluded the state achieving its political objectives. Those errors denied the state the flexibility to make political judgments, balance competing interests and comply with federal law. And so we asked the court to reverse the decision below, and I welcome the court's questions.
Justice Thomas (27:15):
Could you take a minute or so and describe exactly what the underlying Voting Rights Act violation was?
Mr. Naifeh (27:22):
Absolutely, your Honor.
Justice Thomas (27:23):
And how it was remedied?
Mr. Naifeh (27:25):
Yes. The district court in the Robinson case looked at the history, looked at the history of discrimination, looked at modern instances of discrimination. It found that there were extreme disparities in the Black communities in the region around Baton Rouge, into St. Landry Parish and into other parishes, and also in the Delta region, which was drawn into our illustrative maps. So it looked at that history. It found that based on that, those conditions, current conditions, not just history but current conditions, that Black voters in Louisiana had less opportunity to elect candidates of choice than other voters. And so it looked at the totality of the circumstances. It found that there was a compact map could be drawn, and that race did not predominate in the illustrative maps. And therefore it found and it looked at the polarization and it found that Section 2 had likely been violated.
Justice Gorsuch (28:21):
Counsel, what do we do about the fact that Robinson one was just litigated through a preliminary injunction? And I understand that the court has suggested that there's a compelling interest in abiding Section 2, but here we don't have a final judgment. And that's a little awkward to say that a preliminary injunction, which even in the existing litigation has no binding effect going forward, right? I mean, you get a PI, you can lose on the merits. Happens all the time, right? So what do we do about that?
Mr. Naifeh (28:57):
Well, I think first, your Honor, this court has found good reasons on much less than that. It's found good reasons based on legislature's analysis of past election results on demographics of districts and turnouts.
Justice Gorsuch (29:10):
No, I understand that. But here, it's based on a court action. But the court action was preliminary.
Mr. Naifeh (29:17):
It was preliminary in a very formal sense, but the record in Robinson was very robust. It was a five-day evidentiary hearing. The court heard from 21 witnesses. There were hundreds of exhibits, and the court made a reasoned decision based on that record. And not only was it the district court's decision, but that decision was then affirmed by the Fifth Circuit with the benefit of this court's decision in Milligan that found that the district court had correctly identified a likely violation of Section 2. And so under any circumstances under this court's precedent, that's more than enough to find good reasons for the state to engage in remedial redistricting.
Justice Alito (29:57):
Well, it was not only a preliminary injunction,
Justice Samuel Alito (30:00):
It was a preliminary injunction that was vacated by the Fifth Circuit because there was no longer any irreparable harm at the time when the Fifth Circuit decided the appeal and the Fifth Circuit said, "We're not convinced that this will be the right result in the end." Isn't all that true?
Mr. Naifeh (30:24):
Well, not all of it, Your Honor. First, the Fifth Circuit said that the harm is still present. So it was the balance of the equities really, that it was the basis for vacating the injunction. And you can see that in the Fifth Circuit-
Justice Samuel Alito (30:37):
All right, but it's a vacated preliminary injunction.
Mr. Naifeh (30:40):
It's vacated, yes, Your Honor, on the balance of the equities. But the Fifth Circuit very clearly affirmed the merits of the District Court's decision. It's determination that the plaintiffs were likely to prevail on the merits.
Justice Samuel Alito (30:54):
Why is this situation different from the situation in Miller, which I don't think you discuss in your brief, where the state said, "We adopted this map because that was required to get pre-clearance from the Justice Department," and the court just blew right past that. So what's the difference?
Mr. Naifeh (31:15):
I think there's a very big difference, Your Honor, between the Justice Department making a pre-litigation assessment about what Section V requires, which in Miller, the court made clear would be subject to judicial oversight and an Article III court in an adversarial setting looking at the evidence and making a determination that Section II has likely been violated.
Justice Samuel Alito (31:37):
Well, I come back then to the question I asked, Mr. Anglin. I go, what if the underlying decision, what if the district court decision is wrong? What if you read it and you say, "This is wrong? It applied the wrong standard"?
Mr. Naifeh (31:52):
I think, Your Honor, if there were some unusual circumstance like that, and then you'd also maybe want to look at why did the state not defend it if it was so wrong? Unusual circumstances like collusion, like a responsible official's failure to defend a map, which does happen from time to time, then you might look with more skepticism at the decision itself.
Justice Samuel Alito (32:12):
Well, why isn't this a situation where if you look at the face of the decision it's wrong and you just summarize what the middle district judge held and it was wrong. Under LULAC, it's wrong. The question is whether there is a minority population that is sufficiently compact to be included in a district that sufficiently respects traditional districting lines, not whether once you've identified bits of minority population, it is possible to draw a district that's compact. That's contrary to what LULAC said and that's what the middle district said and it's what you just said in summarizing what they held.
Mr. Naifeh (33:04):
Well, absolutely, Your honor, the standard is the minority population sufficiently compact to form the majority in a reasonably configured district?
Justice Kagan (33:12):
Right. We said that in Allen, didn't we? That was pretty recent. That was last year, two years ago.
Mr. Naifeh (33:17):
Absolutely, Your honor.
Justice Kagan (33:18):
We said it in Wisconsin legislature, sufficiently large and compact to constitute a majority in a reasonably configured district. That's exactly what they did. I mean, LULAC has some language, it actually goes back and forth between the two, but we've repeated now several times, including in our most recent decision, the standard that was used here.
Mr. Naifeh (33:39):
Absolutely, Your honor. And the way that standard is typically applied is that if there is a reasonably configured district that is majority, minority, that's the evidence that the minority population is sufficiently compact.
Speaker 1 (33:52):
I mean, if you look at CD-VI, what does reasonably compact mean? I mean, it's a snake that runs from one end of the state to the other. I mean, how is that compact?
Mr. Naifeh (34:04):
Well, absolutely, Your Honor. CD-VI is the remedial district. That was not offered as an illustrative district to prove as Section II violation and states have flexibility when they are drawing remedial districts that a plaintiff in a Section II case might not have. We can't draw non-compact districts to prove the Section II violation, but once we have shown that.
Justice Kagan (34:23):
So in Robinson, they were looking at a totally normal-looking district, right?
Mr. Naifeh (34:28):
It was a much-
Justice Kagan (34:29):
Kind of square and it's like there's nothing unusual about it.
Mr. Naifeh (34:32):
Indeed.
Justice Kagan (34:32):
It actually looks like the district that the state went in with, right?
Mr. Naifeh (34:39):
Absolutely. It's very similar to the state's CD-V in the original map enacted in 2022. And so that's the evidence that-
Justice Sotomayor (34:49):
And it performed better on traditional criteria. The Robinson map performed better on traditional criteria than Louisiana's map, correct?
Mr. Naifeh (34:59):
Yes.
Justice Sotomayor (35:00):
First map.
Mr. Naifeh (35:00):
That is correct.
Speaker 2 (35:01):
So what do we do about that? You came up with some compact maps. Louisiana chose a snake, as the chief justice called it instead, squiggling from one end of the state to the other. Even if there were good reason for the district court for equal protection purposes, the state had good reason to draw another district. Did it have good reason to draw this district?
Mr. Naifeh (35:26):
Well, it had good reason to believe that it had to draw some remedial district.
Speaker 2 (35:30):
No, I'm spotting you that. We're moving past the preliminary injunction stuff, whether they had good reason. I'm asking you, is this one narrowly tailored? Is this one the appropriate district?
Mr. Naifeh (35:40):
Yes. So the question the court asks there is does the district that the state drew, the remedial district substantially addressed the violation?
Speaker 2 (35:47):
And that's my question for you.
Mr. Naifeh (35:49):
And so here, as Mr. Agenyaga explained, the district includes a substantial part of the same population. The core of the district is identical to the districts that were at issue in Robinson, to our illustrative districts. It's about at least 70% of the population.
Speaker 2 (36:05):
The population, but geographically it's wildly different. And so what do we do about that?
Mr. Naifeh (36:11):
Well, I think the geography is not really the issue because as this court pointed out back in the '60s in Reynolds v. Sims, legislators represent people. They don't represent geography.
Speaker 2 (36:24):
Yeah, but districting is supposed to take into account… I mean, we're going to go around the tree I suppose, but districting is also supposed to take into account compactness and contiguity, sorry, and traditional districting principles. And this one you didn't propose this district?
Mr. Naifeh (36:42):
No, we did not propose this district, but we believe the district remedies the violation because it includes most of the population from the illustrative districts and states are not constrained. This court has said repeatedly that states don't have to draw the compact districts that a court would impose. They can take other considerations into account including political ones.
Justice Jackson (37:02):
And I'm wondering whether or not we're conflating the standards in a way as we have this conversation. I mean, the original Section II violation was established via the map that was compact that you created that showed that another majority-minority district could be drawn. And in response to that, the state for political reasons said, "We're not going to adopt that map. We need to make a different one in order to reach the goal of remedying this violation because of political reasons."
(37:41)
So at that point, I'm wondering whether we are even in a world in which strict scrutiny is applying because the state's motivation for drawing the squiggly snake map is not race. Its motivation at that point is clearly politics because that's what it's saying it's doing, choosing that map over the one that you proposed. So do we even need to get into the analysis about narrow tailoring? Because it seems we've left it because we're now in the world of political map drawing, right?
Mr. Naifeh (38:14):
Absolutely, Your honor, and the line this court has long-drawn is between consciousness of race and racial predominance. And that distinction is important to preserving state's flexibility to account for these kinds of political considerations while also complying [inaudible 00:38:29].
Justice Jackson (38:29):
What I hear you saying is the reason why we're looking at a snake-like map rather than the compact map is because of political considerations.
Mr. Naifeh (38:36):
Politics is the only reason that the state chose that map over the compact maps that were offered in Robinson.
Speaker 1 (38:47):
Counsel, you said what's important on compactness is where the core of the district is?
Mr. Naifeh (38:53):
Well, it's not a question of compactness, Your Honor. It's a question of the remedy. Does it remedy the violation that had been shown? This court has never said that states are required to draw compact districts. There's no obligation to draw compact districts if they're not drawing a non-compact district predominantly based on race without an adequate justification. So they can draw non-compact districts as a remedy once a violation has been shown.
Speaker 1 (39:18):
And you think the drawing of this district was not predominantly based on race?
Mr. Naifeh (39:22):
I think that-
Speaker 1 (39:23):
I mean, it runs from one side of the state angling up to the other, picking up Black populations as it goes along.
Mr. Naifeh (39:29):
Well, Your honor, that was the plaintiff's position. But as the state identified communities of interest that it had joined in that district in that shape. And if you look at the Louisiana Historian's amicus brief, they explain that it's not by chance that there are significant Black populations in that corridor along the Red River. It's a result of history. It's a result of the history of slavery of Jim Crow and of the disparities that prevented the lack of economic opportunities that kept people there over generations.
(40:04)
And so those ties are still there throughout the district. There are family ties, there are community ties, there are religious ties among those communities that are drawn together in that district. And that's part of what the state identified. What the legislature identified was the interest that they were drawing together in addition to the political reasons. So it's not a district that randomly draws together pockets of Black [inaudible 00:40:27].
Speaker 2 (40:26):
I think what the chief is trying to get at is certainly politics played a role in this district, but didn't race?
Mr. Naifeh (40:33):
Absolutely, Your honor. The state was trying to draw a district that would remedy the violation that we had shown [inaudible 00:40:40].
Speaker 2 (40:40):
Which is another way of saying race predominated.
Mr. Naifeh (40:42):
Well, I would disagree with that, Your Honor. I think that that means race was one consideration and this court has long said in case [inaudible 00:40:50].
Speaker 2 (40:51):
I'm sorry. I'm sorry, Chief.
Mr. Naifeh (40:53):
No, go ahead.
Speaker 2 (40:55):
Isn't saying race was one consideration, another way of saying race predominated? And how do we square that with the 14th Amendment's promise that race should play no role in our laws?
Mr. Naifeh (41:10):
Well, in the redistricting context, this court has long recognized that legislators are always aware of race. And the fact that race was one thing they were considering when they drew the map does not mean it was the predominant thing. It means that it was one of many considerations that they had. Politics was another, communities of interest was another. And without some evidence that would disentangle those things and show that among all of those considerations the state was considering race was the one that actually drove the lines, the plaintiffs have not borne their burden to prove that racial predominance.
Speaker 1 (41:48):
Thank you, Counsel. Justice Thomas.
Justice Thomas (41:50):
In some of these redistricting cases, the argument is that a certain percentage of the Black population is excluded and you redraw the map to include that population. And what I'm interested in here is exactly what the violation was and exactly how this map solves that or addresses that violation.
Mr. Naifeh (42:20):
So the violation was that the map adopted in 2022 dilutes the votes of Black Louisianians by denying them an equal opportunity to elect candidates of choice. And the way we showed that was through drawing from illustrative districts that included this common core of seven parishes in the center of the state and connecting that with populations in the Delta, which was a similar configuration to the state's map. So ours was a lease change map that would remedy the dilution.
(42:51)
The state included that same core and it drew together other different Black populations in the district to create a remedial district that would remedy the dilution. And I think in that sense, this case is most like Abbott. In Abbott, the Texas court had held that there was a Voting Rights Act violation and the state needed to add additional majority-minority districts. The way the state did that was that it drew together some voters in that Southwest Texas area where the violation had been proven with other voters in a different part of the state. And this court said, "That was fine. They did it for incumbent protection purposes." The fact that it was the least compact district in the state was not even part of the analysis because the state had the flexibility to remedy that violation in a way that also advanced its political goals.
Speaker 1 (43:44):
Justice Alito.
Justice Samuel Alito (43:45):
Let me ask you a question about illustrative district five. That was before the middle district of Louisiana in the Robinson case. So that district combined Black populations near Baton Rouge and Lafayette in the southeast region of the state with splotches of Black populations near Monroe, Bastrop, and Tallulah in the far northeast corner of the state. Now how can the failure to combine these far distant populations in a map in a single district be regarded as the cracking of a concentration of Black voters?
Mr. Naifeh (44:33):
Well, the district court recognized that our illustrative maps were more compact, split fewer parishes than the state's map in creating a new 40 Black district. And that is the-
Justice Samuel Alito (44:47):
The mas scored well on those criteria, but how can that be regarded as cracking?
Mr. Naifeh (44:56):
Those populations, the way the effects test under Section II works, and again, those determinations were made in the middle district in litigation that the state chose not to appeal. So those have not been part of this litigation. But to answer your question, the way the effects test works is it looks at the way the map is drawn and whether it could be drawn differently so that it would not have those deluded impacts.
Justice Samuel Alito (45:27):
Yeah, I understand that. Not only are these populations distant from each other, isn't it the case that they differ in some fundamental respects and therefore may not be part of the same community of interests? The concentration near Baton Rouge and Lafayette are people who live in urban areas. The people who are way up in the northeast part of the state live in rural areas, small towns. Their values may be quite different, much more religious perhaps on the people down in the other part of the state. Isn't that true? And just one last question. Doesn't voting in the 2024 election substantiate that?
Mr. Naifeh (46:20):
Your Honor, the district court in Robinson looked at the evidence of the shared interests among these communities that were drawn together in our illustrative districts. That was part of the evidence that we put on. The court heard testimony from lay witnesses. The court heard testimony from expert witnesses about how they identified those shared interests and how they drew the maps. And so the court made a determination that there were shared interests among the Black voters that were in that district and that they would be advanced by having an opportunity to elect a candidate of choice.
Justice Samuel Alito (46:52):
All right, thank you.
Speaker 1 (46:52):
Justice Sotomayor.
Justice Sotomayor (46:56):
Problem I see is that Louisiana's original 2022 map does exactly what Justice Alito is saying is joining together white voters who don't necessarily have shared interests.
Mr. Naifeh (47:13):
Well, Your Honor, it is a similar configuration, so it does extend from floor to parishes in the southeast and then wrap around the ankle of the boot and head up to the Delta. So it's a very similar configuration.
Justice Sotomayor (47:31):
That's the point, which is what you've done is tied together communities of interest in a different way. Correct?
Mr. Naifeh (47:39):
Absolutely, Your Honor.
Justice Sotomayor (47:40):
And one that complies with Section II but keeps your political needs.
Mr. Naifeh (47:46):
Exactly, Your Honor, and that's what the district court in Robinson found.
Justice Sotomayor (47:49):
Not your political needs, but Louisiana's political needs. Thank you.
Speaker 1 (47:54):
Justice [inaudible 00:47:55].
Justice Kagan (47:55):
If I understand the questions a couple of my colleagues are asking about, it's really was Robinson right? Not was the decision below, right. And as to whether Robinson was right, do you think that we're well positioned in this case to address that issue?
Mr. Naifeh (48:10):
I do not, Your Honor. The Robinson decisions were appealed to the Fifth Circuit.
Justice Kagan (48:16):
Six different Fifth Circuit judges?
Mr. Naifeh (48:18):
Yes, the one there was a state panel that looked at the merits and found that the state was not likely to prevail in the appeal and then that was borne out by the merits panel that agreed that the district court had correctly found.
Justice Kagan (48:30):
We had the opportunity to do something about it at one point. We let it go. Six Circuit court judges. As I understand the respondents argument in this case, the respondents are not standing here. I mean, they might think Robinson was wrong, but their brief is not premised on the idea that Robinson was wrong. Is that correct?
Mr. Naifeh (48:49):
That is absolutely correct, Your Honor. The merits of the Robinson decision have not really been part of this litigation at all.
Justice Kagan (48:55):
And the general here was saying, "Look, they litigated Robinson a lot. They took it to the Fifth Circuit twice." They litigated it a lot and like at some point a state takes its loss and decides that it has to get on with things. And that's exactly what the state here did.
Mr. Naifeh (49:14):
Absolutely, Your Honor, the state was not in a position to simply ignore the Robinson rulings. It was not in a position to draw another map that would dilute the votes of the Black Louisianians whose rights had been violated.
Justice Kagan (49:28):
And that's a reasonable thing. I mean, if we say all the time, "States have to have breathing room, states have to have breathing room," this state used its breathing room to say, "After we litigated this and then we litigated this again," and we knew we were going to lose because six Fifth Circuit judges had told us so. It was time to get on with things and draw our map that served our political objectives.
Mr. Naifeh (49:50):
Absolutely. That's exactly what breathing room provides, that kind of ability for states to take those political calculations into account.
Justice Kagan (49:59):
Thank you.
Speaker 1 (50:02):
Justice Kavanaugh.
Justice Kavanaugh (50:03):
Two questions. One, a general equal protection question and then a more specific Section IIK question. On equal protection law we've of course said, and the courts long said that race-based remedial action must have a logical endpoints, must be limited in time, must be a temporary matter of course, in school desegregation and university admissions. How does that principle apply to Section II?
Mr. Naifeh (50:31):
Your Honor, I think that section II, as it has been applied through jingles is tied to current conditions. It requires a totality of the circumstances analysis that looks at current conditions. It looks at racially polarized voting today. It looks at examples of discrimination today. So it's tied to current conditions and there doesn't need to be an artificial time limit on how Section II would apply because it's always applied based on current conditions.
Justice Kavanaugh (51:04):
Second, on the specific questions here on the race politics, I just want to disaggregate this. My understanding of your position is that the reason that there's a second majority-minority district required is because of race, because of Section II, but the choice between which majority minority district to use was made entirely on politics. Is that your position?
Mr. Naifeh (51:33):
Yes, that is our position.
Justice Kavanaugh (51:35):
Thank you.
Speaker 1 (51:36):
Justice Barrett.
Justice Barrett (51:39):
So as your understanding of breathing room, I just want to be sure I understand your answers to Justice Kagan. Is your answer to Justice Kagan your understanding of what breathing room allows the state to do necessarily mean that anytime there's a district court order finding a Section II violation that is reason for a 14th amendment claim to then later loose because compliance with Section II would always be a reason for the state to draw race-based district?
Mr. Naifeh (52:08):
Your Honor, absent some unusual circumstance like collusion, a decision by an Article III judge provides about the best reasons that a state can have for thinking it faces Voting Rights Act liability. It's been adjudicated to have likely violated the Voting Rights Act and this court has said good reasons means that there is a light, that the state has good reasons to believe it faces Voting Rights Act liability. So yes, I would say that when there is an Article III judge's determination in this case affirmed by the Fifth Circuit, that's about the best reasons this court has recognized as requiring remedial action.
Justice Barrett (52:47):
So let me follow up then on Justice Kavanaugh's question. He pointed out there's two steps here. One, he had to draw a second district based on race, but the shape of that second district was based on political considerations. What if that wasn't the case? What if they didn't like the one imposed by the Robinson map, your map, and said, "We're going to draw a different one," but expressly said the whole time, didn't talk about the speaker, didn't talk about anyone else, didn't talk about politics, just said, "We're doing this because of race, we don't like that other map, race, race, race." So the shape of it was also based on race, which is different than the other one.
Mr. Naifeh (53:24):
Well, I think part of the strict scrutiny analysis is that you have to look at was race used in a way that wasn't necessary to comply with Section II? So if they used race and they packed Black voters in the district because they wanted to use that as a proxy or as a pretext for doing partisanship race, that might render it invalid.
Justice Barrett (53:48):
So that would be an example where you couldn't just point to the earlier Section II litigation as the compelling interest?
Mr. Naifeh (53:58):
No, Your honor. Well, it is the compelling interest. The question is in remedying the violation, did they use race in a way that wasn't necessary to remedy the violation and they used it for some other illegitimate purpose?
Justice Barrett (54:12):
Okay. Thank you.
Speaker 1 (54:14):
Justice Jackson.
Justice Jackson (54:14):
Yeah, and just to follow up on Justice Barrett's point, your point is just that the previous litigation provides the compelling interest a good reason to go forward, but there's still always the narrow tailoring and we are looking at what it is the state is actually doing with respect to its remedy, right?
Mr. Naifeh (54:30):
Yes, absolutely.
Justice Jackson (54:32):
Has the court ever held that race predominates whenever a state draws a district to comply with Section II? I thought we suggested the opposite in Shaw v. Reno?
Mr. Naifeh (54:44):
This court has not held that. The court has expressly said that intentional creation of a majority-minority district does not on its own prove racial predominance. That court said that in Bush v. Vera. And then in Bethune Hill, the court refused to find predominance even where the state had a 55% target. That was just one consideration in the predominance analysis. It wasn't the whole analysis.
Justice Jackson (55:08):
And is it the plaintiffs in the equal protection case burden to disentangled race from politics in a case like this?
Mr. Naifeh (55:16):
Yes, of course, it's the plaintiff's burden at the first stage on predominance.
Justice Jackson (55:19):
Thank you.
Speaker 1 (55:20):
Thank you, Counsel. Mr. Grime.
Mr. Grime (55:33):
Mr. Chief Justice, and may please the court. With one exception that we'll get to in a moment, there is nothing new or extraordinary in the fact pattern presented by this case. This is Shaw II again, this is Miller again. This is Bush v. Vera again from the very beginning of this court's racial gerrymandering jurisprudence. It was born in an era where states were drawing majority-minority districts allegedly in order to comply with the VRA. Whether it was DOJ pressure under Section 5 or fear of Section II liability.
(56:18)
In Shaw II, the District 12, the unusual district in North Carolina was not drawn where DOJ wanted the second district to be drawn. It was drawn there to protect democratic incumbents. In each of these cases, the state always says it wants to protect incumbents and that's why its district is not quite the same as DOJ wants or as the plaintiffs in Section II want.
(56:48)
There's nothing new about that in this case. What the appellant's claim is new is Robinson, but Robinson was not a final decision. And we can avoid all the problem about how final it was or how convincing it was by simply asking the defendant on strict scrutiny to bring this mountain of great evidence into the court and show why there's a strong basis in evidence for drawing a second district and to show why it's nearly tailored.
(57:18)
But ultimately, they didn't do that here because the decision is badly flawed and because the district judge in Robinson at page 834 looked at the original Hayes/map, which is so close to this map and said that the districts there were diffuse and nonsensical. And so that's why it never came up. And that's our problem here. I'm happy to answer questions.
Justice Thomas (57:42):
Do we have to accept Robinson, which is not on appeal here as a given?
Mr. Grime (57:50):
Justice Thomas, we don't have to. Instead, we should have looked to the defendants to bring out the parts in district court about Robinson that they thought were so compelling and they never did. They actually tried to block any discussion of Section II at the district court level.
Justice Sotomayor (58:08):
I'm sorry.
Speaker 1 (58:09):
No, go ahead.
Justice Sotomayor (58:15):
They have a decision by a lower court that they're likely to succeed. They have an appeal of a temporary restraining order where that court says they're likely to win. And we have a merits panel who looks at it and says they're likely to win. That's not enough to provide a good faith basis for believing that they need to comply with Section II. That's what you're saying?
Mr. Grime (58:45):
Well, there's two answers to that. First of all, if they did believe that, the answer so that we wouldn't have to speculate here would be bring the evidence to the three justice court-
Justice Sotomayor (58:56):
Why did they have to do that? Meaning what you're asking for is a re-litigation of Robinson in total, but it's not whether they were right or wrong. We've said that good faith doesn't mean that you're proven that you had to do this. It's just whether you had a good faith basis to believe you should do it.
Mr. Grime (59:18):
But in Wisconsin legislature, this court said that the breathing room is for reasonable mistakes in the data. But you have to make your showing. You have to make your showing.
Justice Sotomayor (59:30):
We'll go back to that. Thank you.
Justice Jackson (59:32):
Well, counsel, can I just ask you, because some of the things that you've said makes it seem as though you're suggesting that Louisiana's pointing to the court order was pretextual. In other words, you say if they believed that the court was ordering them. So do you have some basis for disputing what Governor Landry said, "We are here today because the federal courts have ordered us to perform our job. We have exhausted all legal remedies and we have labored
Justice Jackson (01:00:00):
With this issue for too long and that's why we're drawing the map. Do you concede that Louisiana at least sincerely believed that the courts were requiring it to do this?
Mr. Grime (01:00:11):
Well, I think I would simply point to the litigating position of Louisiana throughout the case, including just a few minutes ago. In their heart of hearts, they don't believe the VRA requires this.
Justice Jackson (01:00:22):
No, I understand they thought the courts were wrong, but the question is, did they believe that a court was ordering them to do it? I am concerned about your view as seemingly expressed, and I want you to clarify it, that a court order compelling you to do something is not a good reason for you to do it.
Mr. Grime (01:00:44):
Justice Jackson, I'll just fall back on General Merle's comments to the legislature making clear that the state was not under a court order at the time. Instead, the Fifth Circuit said you can either go back and defend this district without using your Allen v. Milligan-style theories and actually put in evidence on the Gingles factors, which they hadn't done, or you can go draw a VRA-compliant map. They were not ordered to simply go draw the map.
Justice Jackson (01:01:09):
No, but that goes to the remedy. I'm asking about the violation. We had many judges, as other justices have set forward, that looked at the actual merits of the question of whether or not there would be a VRA violation if a new map wasn't drawn. So Louisiana felt, I think they're saying, compelled to do something about this. And you seem to be questioning whether or not they were. And I'm just trying to clarify that.
Mr. Grime (01:01:39):
Well, at the end of the day we do have to take Louisiana at their word, but I just want to be clear. They were given a choice to actually go in and raise a defense and I think reading Robinson makes this clear. The court says time and again, Louisiana, you raised the Alabama arguments from Allen v. Milligan. You tried to use experts to show that Gingles one was violated because of the intent of the illustrative map drawers, but you never put in actual evidence on the types of factors that Justice Alito was talking [inaudible 01:02:13]-
Justice Jackson (01:02:12):
So-
Justice Kagan (01:02:13):
I guess I don't understand, Mr. Grime. What should Louisiana have done? Louisiana litigated this case. It lost in the district court. It lost twice in the circuit court. If I read the list of the judges, I'm just going to tell you that if you lose those judges, you're going to lose. We had no interest in taking the case. It was brought to us. We said no. What was Louisiana supposed to do?
Mr. Grime (01:02:40):
Well, I think in this case the Fifth Circuit laid out the options. First of all, Louisiana had no reason to think. The same illustrious list of judges pointed out that you can start over again. You can retool and maybe don't use Allen v. Milligan as the roadmap this time. That hint was clearly given to the state.
Justice Kagan (01:03:02):
So I guess I get the idea that it did have the option to keep on finding ways to litigate this question. But there were ways that it could have refused to give up. I take that point. But at some point it said, "We've been told we're wrong by seven judges and we're going to accept that and we're going to move on and find a map." And then the state lawyers come in and the record is the state lawyer says, "There can be no better reasons to believe that the VRA required a second majority Black district than a presidential opinion of the Fifth Circuit asserting that a map with a single majority Black district likely violated section two."
(01:03:49)
And the state lawyer talks about all the process that they went through and all the hearing that they had and the maps that were submitted and she says, "What better reason could there be for this?" So at a certain point, I get that there might have been other options, but that's the whole point about breathing room, right? Breathing room is states have choices and this was one state that decided on this choice that you don't agree with, but it was well, well, well, within the parameters of a good faith reasonable choice.
Mr. Grime (01:04:25):
Justice Kagan, if that were true, then what the state should have done is brought that before the district court. What the state argued in the district court was, is that Robinson's mere existence was dispositive, that we were essentially stopped from even bringing our claim for that reason. And so if the evidence was so compelling in Robinson, all they had to do was use their trial time. They didn't even use all their trial time and show us the key points.
Justice Gorsuch (01:04:51):
Counsel, if we're going to defer to the Fifth Circuit, they also found a constitutional violation here too. So speaking out of all sides of all mouths down there. And I'm not sure that's how the system works anyway,.but I have a question for you on the remedy. Your friends on the other side say, "Okay, race predominated in creating a second district, but race didn't play a role in this squiggly line district. It was politics." And I want to get your response to that.
Mr. Grime (01:05:28):
Sure. There are two responses, Justice Gorsuch. First of all, Senator Womack in his presentation, he's the sponsor of the bill, said there is just not enough Black voter population in southeast Louisiana. And he says that is why the district is drawn up to Shreveport up I49 and up the Red River to Shreveport. So the sponsors were very clear that that's what they were doing. So you can look at the evidence, but the other issue is this. The only reason that politics began to matter at this level was because they accepted that there had to be a second Black majority district. That then caused the problem of losing an incumbent and having to choose who was going to be lost.
Justice Gorsuch (01:06:13):
What does it mean to say race or politics predominate? I thought the 14th Amendment said we don't look at race. Predominate says you can't up to a point, but I don't know what that point would be. And I don't know. Can two things predominate? Can politics and race predominate? I don't know.
Mr. Grime (01:06:35):
Justice Gorsuch, that may be a problem in some racial gerrymandering cases. It's not a problem here though because everyone admits that step one of the process, in fact the state admits in its briefing, the baseline was to draw a second Black majority district. Everything else that happened flowed from that. And that's enough, under Bethune Hill, under Cooper, under several of the court's cases-
Justice Jackson (01:07:00):
That's enough for predominance? We have a case that says that if you are drawing a second or a third or whatever Black minority district, you satisfy the racial predominance requirement?
Mr. Grime (01:07:11):
What I was quoting was that the standard for predominance is the initial decision that couldn't be compromised. And actually, just last-
Justice Sotomayor (01:07:20):
I'm sorry. Then there's no way to comply with section two.
Mr. Grime (01:07:23):
Well-
Justice Sotomayor (01:07:24):
If what you're saying is you can never, a state could never in good faith redraw a map if it believes that it's going to draw a map that is going to solve a section two violation. That's what you're saying.
Mr. Grime (01:07:42):
No, Justice Sotomayor.
Justice Sotomayor (01:07:43):
It's a vicious cycle they can't get out of.
Mr. Grime (01:07:45):
No, Justice Sotomayor. They would then show on strict scrutiny, a strong basis in evidence for drawing that map. And that's what, that [inaudible 01:07:53] too.
Justice Sotomayor (01:07:53):
But that's what they've done. But that's what they've done here. They've got a judge saying, "You've violated it. There's an alternative map that meets all traditional criteria. Go draw your own map but make sure you get a second [inaudible 01:08:06] because that's the only way to remedy this violation." And they come up with a second map or a different map that they show is based purely on politics. They wanted to save three incumbents, so they drew lines to save three incumbents.
Mr. Grime (01:08:28):
Justice Sotomayor, I think it is helpful to look at the remedial map. First of all, Senator Womack stated that it was for the purpose of capturing additional Black voters that it was drawn that way. But we can skip a lot of the difficult issues that have been raised here by going to one point. And that point is from Shaw two, from Miller and from Bush and actually in LULAC as well, which is that you can never have a section two remedial map that fails Gingles one, that is not geographically compact and does not comply with traditional redistricting criteria. And that's what the district court found here. As a matter of fact, we have a factual finding from the district court on that point.
Justice Sotomayor (01:09:09):
Thank you, counsel.
Justice Kavanaugh (01:09:11):
Well, their answer to that, I think is the 70%. So can you just address that?
Mr. Grime (01:09:16):
Sure. So the 70% does not trump the geographical compactness requirement. I will address that. But I want to make very clear that no matter what, even if you've covered a lot of the old population, you can't draw a non-compact remedial district and that decides the case. But the other problem is this. First of all, I think the correct number is something like 67% we looked. But it's over half of the population and that really matters when you're looking at Gingles. Because remember, Gingles hinges on some very fine calculations. And when you lop off a 100,000 Black voters in 14 parishes, have to find a 100,000 new Black voters in another area of the state, you can't just assume that that's substantially related.
(01:10:04)
The 20% issue also, if you go back and look at Shaw two, the 20% they're talking about is Mecklenburg County. They're talking about the Black voter core of that county. The court's referring to 20% of the area of that district 12. And we couldn't tell. We looked for this. You can't, it likely was a much higher percentage of the Black voter population of District 12, but it's not in the record and I've not been able to figure it out.
Justice Jackson (01:10:32):
Counsel, speaking of the record, I have to point to what the appellant's point to on page 18 of their brief. This is the state's brief. When they talk about Senator Womack, you've mentioned him several times, and apparently he was asked directly, "What was the predominant reason for you to create the sixth district this way, the way it looks now, versus just going with Senator Price's bill, which created a more compact district?" And he answered, "It was strictly politics. Politics drove this map because of the Speaker Johnson, Majority Leader Scalise, and my congresswoman Julia Letlo." Predominantly drove this map, and he disavowed that race was the predominant factor. You've said exactly the opposite several times here. So can we just get some clarity on what Womack's position was?
Mr. Grime (01:11:29):
Sure. First of all, Senator Womack said a lot of things. What I quoted from Senator Womack was accurate, but what Senator Womack was doing was distinguishing between the Robinson maps, or whatever one presumed them to be, and the new district. The problem though is that this court has never said that there is a second intent analysis done on strict scrutiny. In fact, Justice Kennedy specifically in Bush v. Vera said in response to Justice O'Connor suggesting that that could be the standard, said, "We've never recognized that, and no case from this court ever has."
Justice Jackson (01:12:04):
Let me put it this way. If Louisiana had accepted the initial Robinson map, would you have brought your litigation? Would you have been able to make the argument that this was not compact, this was somehow a violation? Or what would your position have been?
Mr. Grime (01:12:19):
Well, we don't have all the facts in front of us, but we would have scrutinized it. And if the record had been what it was in Robinson so far, we absolutely would have brought the case. And then they would have come into our case and said, "Well, we think it's compact. We only looked at plan-wide compactness and that's why we won." I think we would have prevailed, but it's a hypothetical.
Justice Kagan (01:12:42):
I guess I don't quite understand the role compactness plays in your analysis because, and this goes back to Justice Kavanaugh's point, that there's really two steps, once Robinson has provided Louisiana with a good reason to think that there was a section two violation that they needed to remedy by creating another minority district, once that happened, what Louisiana did was look at this map and say essentially, "We have three incumbents and we know which two are really important for the state to keep."
(01:13:13)
And they created a map that made sure that they kept the two incumbents that were most important for the state to keep. And why isn't that completely within the prerogative of a state? That has nothing to do… It creates a less compact district. No doubt about that. But we've never said to states, "Oh, you got to go with compactness when the speaker of the house is going to be thrown out." It's totally within the prerogative of the state to say, "Incumbent protection and particular incumbents are really super important to us."
Mr. Grime (01:13:49):
Two responses, Justice Kagan. First of all, we are in strict scrutiny at this point. The state has racially gerrymandered Black and white voters.
Justice Kagan (01:13:59):
No, but there's two steps here. One is, is there a good reason to think there's a section two violation? Robinson has created the premise of thinking that there's good reason, that you need to create another map. Now the question is, what does that map look like? It's the remedial question. Does the map substantially address the section two violation that you have good reason to think exists? And the state says, "The plaintiffs have presented these maps that would substantially address that. We have a better map that would substantially address that also allows us to keep our incumbent. Better because it allows us to keep our incumbents." What's wrong with that? If the state can't do that, the state has no breathing room.
Mr. Grime (01:14:48):
Well, first of all, we disagree with the first premise of the question, but here's, I think where the problem is. This court is going to have to overrule Shaw two and Miller if it holds that you don't have to draw a geographically compact remedial district because the court in Shaw two said, "Looking at District 12, there's no way we can find that there is a geographically compact population of any population of that district," and that's why they lost in Shaw two.
Justice Kagan (01:15:21):
I think this is a little bit backwards, Mr. Grime, because you will only get to evaluate whether CD 6 if we find that there was good reason to think that there was a substantial likelihood of a voting rights violation. So that good reason is provided by Robinson. And Robinson says that there's a compact minority population whose section two rights are likely being violated. Once Robinson says that, the question only becomes whether CD 6 substantially addresses that section two violation. But the compactness inquiry, which is, is there a compact district such that section two is being violated? That happens at the first step of the analysis and Robinson has already addressed that question.
Mr. Grime (01:16:13):
Well, but unfortunately, Robinson is addressing a different area of the state. And that's the problem. That's why compactness is a backstop. The other problem is this. In states where you are wringing out the very last elements of Black voting population, it's inevitable that whatever the gerrymander is, it's finally drawn, is probably going to have some fair slice of what was in the original maps. That's why if you only focus on overlap, you're missing the key issue from Shaw two and from Miller, which is that you have to have a geographically compact remedial district. Full stop. And that's the backstop that keeps us from having to draw lines and figure out how much of Mecklenburg County was really in each district and whether 67% and over half the territory is enough.
(01:17:04)
And again, it matters because these are Gingles districts and all we know is the average for the whole district. We don't even know that the section we're gathering combines with the new voters to satisfy Gingles.
Justice Kavanaugh (01:17:15):
Your-
Justice Samuel Alito (01:17:15):
Maybe I'm missing the thrust of the question, but the question seems to be, is it not the case that if you grant the premise then at the remedial phase, anything goes? Now, can that possibly be correct? Suppose that the district that's created is not, the parts of this district are not even connected. You've got an island here, an island there, an island here, an island there. Would that be okay?
Mr. Grime (01:17:46):
Absolutely not. And that's the problem.
Justice Kagan (01:17:48):
Mr. Grime, it is not an anything goes inquiry. We've said it has to substantially address the voting rights population. So for example, where there was a remedial district that addressed only 20% of the people whose rights were actually violated, we of course struck that down. But here the district addressed 70% of the people whose rights were being violated, which seems like a ways different from 20% and seems to suggest that the voting rights violation was being substantially addressed, which is the only thing we've ever required at that point.
Mr. Grime (01:18:24):
But well, actually, Justice Kagan, in Shaw two, the court says, "That the remedial district must be compact. It must hold a geographically compact population." And why not just take Shreveport, skip the inter [inaudible 01:18:40] territory and not have it be contiguous, and add that to what is claimed to be the core of this district? Now again, it was the state's burden to show this in the district court. This argument was never raised in the district court.
(01:18:51)
There was no evidence whatsoever in the record about how many of the people from the original district were in there and whether by combining them with the new populations, we have anything that looks like a Gingles district. Because again, their entire argument was the mere existence of Robinson completely satisfies strict scrutiny. That cannot be correct.
Justice Kavanaugh (01:19:11):
Your lead argument in the brief for why there was no compelling interest here in the race-based redistricting on page 36 was the durational point, the constitution, the authority of a state to engage in race-based redistricting must have an end point. You haven't mentioned that so far. The other side said that that argument's been forfeited and I want to get your response to that. The fact that you haven't mentioned it so far certainly supports what they're saying on that, but I'll give you a chance to respond.
Mr. Grime (01:19:43):
Sure. The problem with this case is that we think the appellees win many different ways. And this is an argument we're making on the side of the case that is the state's burden. And so I don't think the law supports that it's our duty to anticipate second or third or fourth reasons why they'll fail under strict scrutiny and make sure we raise them below. And so I don't think the argument was ours to forfeit. I guess I can put it that way.
(01:20:16)
But the problem is this. If you go back to Robinson, the evidence on current racial context in Louisiana that still requires this purely effect-based test was very thin. They could have actually, in fact, they would have had to have raised that in the district court below, but they never did do that. Again, they didn't bring in any Gingles evidence, let alone the kind of evidence that would say, if you look around Louisiana, there are still a lot of barriers to Black citizens voting. So that's not on the record. I think there's a reason for that. And I think that shows us that section two is no longer performing the function that it was assigned, that Congress thought it was going to perform back in 1982. Now, why are we seeing so many section two cases? Why are we suddenly now, as voters are becoming more integrated, why are we suddenly finding new section districts everywhere? I think that's a problem.
Speaker 3 (01:21:21):
Thank you, counsel. Justice Thomas. [inaudible 01:21:24]. Justice Barrett. Justice Jackson.
Justice Jackson (01:21:30):
I just have one final question and it's the Robinson map, the proposed Robinson map that had the Black district that would be one that might oust Julia Letlo, is it your position that the Black district drawn in that map was not sufficiently compact?
Mr. Grime (01:21:52):
Your Honor, we think if we have a chance to litigate that, which we would at the remedial phase, assuming that that's raised again, we think we'll be able to show that it's not sufficiently compact. That there are far-flung Black communities in northern Louisiana and even in the Delta parishes in Lafayette that don't have very much in common with the more dense population in East Baton Rouge. I think we'll be able to show it doesn't perform as well, but not in the record.
Speaker 3 (01:22:19):
Thank you, counsel. Rebuttal, counsel?
Mr. Aguiñaga (01:22:24):
Thank you, Mr. Chief Justice. Just three brief points. First on racial predominance. I would emphasize this court's decision last year in Alexander where the court emphasized caution that when a federal court says that race was a legislature's predominant purpose in drawing a district, it accuses that legislature of offensive and demeaning conduct. If that caution applies in the ordinary case, respectfully, it should be especially heightened here in the case where two Article III courts are telling a state to use race to draw a second majority district. So Justice Jackson, we don't think the court needs to get to strict scrutiny because race did not predominate under Alexander.
(01:23:02)
Second, on the question of strict scrutiny, my friend talks a lot about Shaw and compactness, but respectfully, my friend ignores footnote nine of Shaw two. There in footnote nine of Shaw two, this court said that even a plaintiff in a successful section two case does not have a right to be in the ultimate remedial district that is drawn. That's because that footnote emphasizes a state has broad leeway to draw that district. Respectfully, there is no holding in this court's cases that require us to satisfy Gingles in drawing the remedial district as we did here.
(01:23:35)
The third point is just one about next steps. With all due respect, we'd rather not be back at the podium this fall defending a new map against a new challenge. This court's cases promise breathing room. We operated in that breathing room in drawing District Six. And if this court holds otherwise, then respectfully, I don't know what this court's voting cases mean. We ask you to reverse. Thank you.
Speaker 3 (01:23:58):
Thank you, counsel. The case is submitted. We'll hear argument next in case 231270, Riley versus Bondi. Mr. Bradley.
Mr. Bradley (01:25:36):
Mr. Chief Justice, and may it please the court, A sensible scheme of judicial review would provide a right to review on a petition properly filed, particularly on matters of life and death where errors left uncorrected are so contrary to the fundamental policies of the United States. But it also would not have the courts routinely intrude while the agency is still doing its work. When the agency is deliberating where a non-citizen can be sent in light of an objection duly raised in the ordinary processes, that work is ongoing. Amicus's proposal would mean that a non-citizen petitioner is allowed to seek a court's decision on withholding issues that the agency has barely begun to assess. The INA does not suggest that Congress intended that surprising result. Instead, the statute is consistent with common sense. Regarding jurisdiction, Santos-Acuria already explained that stone was not a holding on that point. The court should adhere to what it said there. And certainly, 1252 B1 does not rank as jurisdictional under the modern rubric. I welcome the court's questions.
Justice Thomas (01:26:49):
Did petitioner seek a review of the removal order?
Mr. Bradley (01:26:56):
We are not seeking a review of his removability. We are seeking a review of the CAT decision, your Honor.
Justice Thomas (01:27:03):
But the only jurisdiction we have is over the removal order.
Mr. Bradley (01:27:12):
I think that's, I would question that premise, your Honor. [inaudible 01:27:18].
Justice Thomas (01:27:18):
Or final order. Excuse me. A final order.
Mr. Bradley (01:27:21):
The statute allows the court to conduct review within 30 days of a final order removal, but it also clearly says the court has jurisdiction to review a CAT order. As the court explained in Nasralla already.
Justice Thomas (01:27:35):
Have we ever said that you could do that independent of the final order?
Mr. Bradley (01:27:42):
Not independent in the sense, and that is exactly the problem, your Honor. I think that the sensible approach is to wait until the agency has concluded all of its work and then you have one petition that encompasses removability, the order of removal, and the CAT questions that are reduced.
Justice Thomas (01:28:00):
Does a CAT question then convert the final order into a broader final order by attaching itself to that?
Mr. Bradley (01:28:13):
I think what Nasralla teaches us certainly is that it does not convert a CAT order that says, that denies CAT relief is not converting the final order into something else except from the timing of it. And what gets decided is affecting the finality. Because as we explained in the brief, and I believe the government agrees, where you can be sent is something that remains to be decided. The removal order under the government's regulations has to tell you where you're going to be sent. You have an opportunity to object right then. If the process results in that [inaudible 01:28:59] not working, then they're going to tell you where else and then you might proceed into another. So it does not affect the removability.
Justice Thomas (01:29:07):
So do you have, what's your best textual hook for that?
Mr. Bradley (01:29:11):
I'm sorry. For which? [inaudible 01:29:14]?
Justice Thomas (01:29:14):
For your argument that the CAT order has to be, it can expand the time limit of the final order.
Mr. Bradley (01:29:23):
So it turns on what final means, your Honor. And the statute we submit, obviously it explains what makes something final in certain circumstances. And aside from that, it's a word that this court has interpreted in many contexts to mean that the agency's decision-making is full and complete on all issues, that the agency has dissociated itself from the decision-making process. That's the word final.
Justice Sotomayor (01:29:53):
[inaudible 01:29:54] one definition in the statute, at least the courts on Amicus' side
Justice Sotomayor (01:30:02):
… concede that the one issue that defines finality is when the board concludes its work, correct?
Mr. Bradley (01:30:09):
When the board concludes its work, that is correct. And here when the board concludes its work, as you know, it-
Justice Sotomayor (01:30:15):
It is after the CAT, because the CAT decision can change the final order, correct?
Mr. Bradley (01:30:19):
Absolutely, correct.
Justice Sotomayor (01:30:20):
Because it'll change. The final order says you are removable, you're going to X Country, and the CAT order will say, "No, make it Y Country." So, there is an amendment.
Mr. Bradley (01:30:36):
There is an amendment that-
Justice Sotomayor (01:30:37):
So, this is almost like a conviction and a sentence, meaning the conviction is final in a district court until you appeal it, but you wait for the sentence for the appeal because you want the court to finish with everything at once.
Mr. Bradley (01:30:55):
I think you have it exactly right, that analogy. And Nasrallah was familiar with that analogy, of course.
Justice Sotomayor (01:31:02):
That's the one it gave.
Mr. Bradley (01:31:03):
That's the one in Nasrallah.
Justice Sotomayor (01:31:05):
Right. Now, Congress does use the word administrative in a different provision, the detention provision.
Mr. Bradley (01:31:11):
Correct.
Justice Sotomayor (01:31:11):
It's all 52. So, there they said, "When an order is administratively final," meaning when the agency has finished on this particular question. But it uses a different word, "final order of removal," here. That difference, how does it play into your argument?
Mr. Bradley (01:31:32):
That difference, I think, is good support for us in that administratively final, presumably the administratively means something. It points us to that. That moment is a different moment from the moment when the order is final for purposes of judicial review. Therefore, we would expect, not necessarily in every case, but we would expect that conceptually, administratively different final is different from final. And so, that point that Guzman Chavez pointed out, when detention can begin because one issue in the case has been resolved, is different from the case point when everything is finished, when the agency has fully finished with its work. That's final for judicial review.
Speaker 1 (01:32:19):
Just on the 30-day deadline, do you understand our position to be that we're never going to find jurisdictional bar again?
Mr. Bradley (01:32:34):
Certainly not. I think that there may well be one out there. I have not canvassed the US Code. But the court has demanded something very clear from Congress to indicate that a time bar is jurisdictional, and there's nothing more here than the others that have not been jurisdictional.
Speaker 1 (01:32:57):
Well, there is the fact that they applied equitable tolling in the Stone case and said equitable tolling was not available, which sounds like something you would say if you're dealing with a jurisdictional provision. It referenced limitations on certiorari and time to appeal, which everybody agrees are jurisdictional, I guess until the next case comes up. But at least now, everybody agrees that they're jurisdictional. Is it really a magic-words case that statute has to say, "And this is jurisdictional?"
Mr. Bradley (01:33:33):
So, I'm going to take that in two parts, if I could.
Speaker 1 (01:33:35):
You can.
Mr. Bradley (01:33:37):
The first thing is about whether this is a magic-words case. I think if you look at everything in 1252 and the entire context, there are many, many clues that this particular deadline is not jurisdictional. They said jurisdiction when they meant it, and they did not in (b)(1). In addition, they removed particular wording that was in the pre 1996 IRA that gave a specific point in time that is less clear under the amendment. So, there are these textual clues.
(01:34:07)
But the second thing is, to go back to your observations about Stone, whether the equitable tolling could be available, Stone's an excellent example of something that mentioned that in passing and made no difference to the case. No one had asked for equitable tolling. What was asked for was a concept of non-finality that is just as available for jurisdictional as for non-jurisdictional deadlines.
Justice Sotomayor (01:34:33):
Mandatory claim processing, which are non-jurisdictional, you can't equitably toll either, correct?
Mr. Bradley (01:34:40):
Also true.
Speaker 2 (01:34:42):
Counsel, I just want to explore whether there's any daylight between your position and the government's position here. And one area that I wondered about was whether you think the CAT order itself is a final order of removal. Pages 47, 48 of your brief venture into that territory, whereas the government would say, "No, the final order of removal is at 1228 Farrow," but it doesn't become final until after the CAT resolution. So, which is it?
Mr. Bradley (01:35:18):
So, I would say that there is a millimeter of deadline that will not matter. So, let me explain that. We agree that the Farrow is an order of removal. We agree with the government that that order of removal became final upon the conclusion of all of the administrative proceedings, when everything related to it was resolved. It seems to us also that the board's order was also an order of removal that was, of course, final at the same time, but you don't need to decide on that-
Speaker 2 (01:35:50):
That worries me with Nasrallah a little bit, if we were to say the CAT order is a final order of removal. That seems to me run headlong into Nasrallah, but the government's theory doesn't.
Mr. Bradley (01:36:00):
The government's theory does not, I agree with you, and we share that theory as well. We think that the Farrow was an order of removal that became final upon the completion of the proceedings.
Speaker 2 (01:36:09):
Is there any other daylight between you and the government in this case?
Mr. Bradley (01:36:12):
Can't think of any. Oh, actually, sorry, one more, which is that also not really before the court, which is that we think that the 30-day deadline, we agree that it's non-jurisdictional. We think it's not mandatory either, but no one is asking the court to decide that particular question.
Justice Jackson (01:36:31):
Going back to Justice Thomas' question about textual basis for your position, are you relying at all on the zipper clause, 1252(b)(9)?
Mr. Bradley (01:36:41):
Yes, we certainly are, because that is a sign that what we and the government are asking for is the sensible way to proceed. It is very clear that Congress intends for there to be judicial review of CAT claims. And the zipper clause is telling you that everything should come up in one petition. And how is that to be done? That is to be done by interpreting final to mean when the agency is fully concluded with its process.
Justice Jackson (01:37:13):
And you're getting your proposition that there's supposed to be judicial review of CAT claims from 1252(a)(4)?
Mr. Bradley (01:37:20):
Correct. Which, of course, at least we read Nasrallah to have looked at that provision and concluded that Congress did indeed intend judicial review of CAT claims.
Justice Samuel Alito (01:37:32):
You've referred to common sense and a sensible way to proceed. Do you think that's a characteristic that can be found in our recent related immigration decisions?
Mr. Bradley (01:37:47):
I'd rather not comment on that if I could avoid it, but I will say that-
Justice Samuel Alito (01:37:51):
Let me ask you.
Mr. Bradley (01:37:52):
But the red light is on. But common sense is always the goal, I think, Your Honor.
Justice Roberts (01:38:01):
Justice Thomas, any further? Justice-
Justice Samuel Alito (01:38:04):
Let's see if the red light won't save you from my other question. Why don't we just say it's a magic-words test? Unless Congress says it's jurisdictional, then it's not jurisdictional. These cases are endlessly interesting, and they fill up our docket, but I don't know what. What statutory provision that doesn't have the magic words will ever be held to be jurisdictional? Can you think of a possibility?
Mr. Bradley (01:38:36):
Well, we know three of course, Your Honor. 1291, but other than-
Justice Samuel Alito (01:38:41):
Well, they have a historical pedigree.
Mr. Bradley (01:38:43):
Exactly. I cannot speculate to how Congress might write a statute that would do that, but I would reiterate this particular one, given the structure of the statute and the way the jurisdictional is used elsewhere in the statute, this deadline is a straightforward one to conclude it's not jurisdictional.
Justice Sotomayor (01:39:04):
This statute… Oh, I'm sorry.
Justice Samuel Alito (01:39:06):
Nope, you're up.
Justice Sotomayor (01:39:08):
This statute is as clear as you can be.
Mr. Bradley (01:39:10):
Yes.
Justice Sotomayor (01:39:10):
Some provisions say there's no jurisdiction.
Mr. Bradley (01:39:13):
Exactly.
Justice Sotomayor (01:39:13):
This one doesn't.
Mr. Bradley (01:39:14):
Correct. Exactly.
Justice Sotomayor (01:39:16):
And if Congress needed education, it certainly has enough opinions that say just say it's jurisdictional and tell us that no other further release can be given, correct.
Mr. Bradley (01:39:28):
Agreed?
Justice Sotomayor (01:39:29):
All right.
Justice Roberts (01:39:31):
Ms. Kagan? Justice Gorsuch? Justice Barrett? Justice Jackson? Thank you, Counsel. Mr. McDowell?
Mr. McDowell (01:39:51):
Thank you, Mr. Chief Justice, and may it please the court. On the first question presented, the 30-day filing deadline in section 1252(b)(1) is not jurisdictional. That provision fails this court's clear statement test, and Stone is not a binding jurisdictional ruling.
(01:40:07)
On the second question, the petition here was timely because it was filed within 30 days of the board's CAT order. In section 1252(a)(4), Congress provided for judicial review of CAT claims. And Nasrallah confirms that courts may review CAT orders together with removal orders. It follows that a CAT order becomes final at the same time as a removal order. So, that challenges to both orders can be raised together in the same petition for review.
(01:40:34)
Under Amicus' position, many CAT claims would be unreviewable. But when Congress wanted to preclude judicial review in the INA, it did so expressly. It is unlikely that Congress would have precluded review of many claims indirectly by way of a generic 30-day filing deadline. I welcome the court's questions.
Justice Thomas (01:40:53):
Can you give us an example of a instance in which appeal B can be considered with appeal A, but appeal B actually expands the time limit for appeal A?
Mr. McDowell (01:41:11):
I think the best analogy is the one that Justice Sotomayor pointed to, which is that a conviction cannot be appealed until after the sentence, even though the sentence doesn't affect the validity of the conviction or merge into the conviction.
Justice Thomas (01:41:24):
Okay, let's try the civil context. Can you think of any other provision?
Mr. McDowell (01:41:27):
I suppose there, the way it would work in a remedial scheme, remedial decision, as opposed to a liability decision, the remedial decision wouldn't affect the liability decision, but we would still, under the final judgment principle, not allow an appeal of the liability ruling until after the remedial decision is done. And I think the same basic logic applies here. Because as Nasrallah points out, a CAT order does not affect the validity of a removal order. But our position is that the removal order doesn't become final until the end of CAT proceedings. Because that's when the agency has finished its work on the case and disassociated itself from the case, which is the basic final judgment principle that always applies in judicial review in the courts of appeals.
Speaker 2 (01:42:10):
McDowell, can you give us some examples of… You say that adopting Amicus' view would leave certain CAT orders unreviewable. Can you give us some examples?
Mr. McDowell (01:42:20):
So, I think under his position, I think the CAT order in this case would be unreviewable because Petitioner didn't file the petition for review within 30 days of the section 1228-
Speaker 2 (01:42:31):
I think your friend, though, in this case would say, "Well, he could have done."
Mr. McDowell (01:42:35):
So, our point is that if you're referring to the premature protective petition scheme idea, I think that there are two potential legal problems there. One is the zipper clause, which contemplates a single petition for review at the end of the case, whereas the premature filing of a petition, supplemented by a later filing related to the CAT claim, I think runs counter to that idea.
(01:42:58)
I also think that if the court were to adopt Amicus' reading of the statute, one potential upshot of that is that Congress intended to foreclose review of these claims. And if Congress wanted to foreclose review of these claims, we don't see how courts and litigants could adopt a workaround scheme to get around that. But obviously, our frontline position is that Congress did want review of these claims.
Speaker 2 (01:43:19):
I think your friend on the other side would say, "Well, they can file these protective appeals and courts of appeals can hold on to them, and then when the CAT order matures, you're good to go." Would courts of appeals have to keep those notices of appeal on their docket? Is there a risk they might dismiss them? I'm just not sure. I've not held a notice of appeal on my docket as an appellate court judge on the Tenth Circuit for what, a year, two years while the CAT order is on hold. I just don't know. I haven't encountered that.
Mr. McDowell (01:43:52):
I think this points up another problem with this idea, which is that I don't actually think it's a particularly effective way of preserving judicial review. Because these procedures lie within the discretion of the courts of appeals. And so, some courts of appeals may deny a motion to hold a case in advance. So, I think we would end up with a patchwork system, where some circuits are generally preserving review of these claims, others are not, and there might be even variation within circuits.
(01:44:16)
We also see some other practical problems with the system. One is that it leads to a flood of meritless prophylactic petitions, which really aren't challenging the removal order itself. They're just a placeholder for a later decision that may actually go into Alien's favor. The second problem is that it creates a trap for the unwary, because many people in the system are unrepresented and won't know that they have to file this sort of counterintuitive protective petition.
(01:44:42)
And then, finally, it does create administrative burdens for the courts and for the government. And what we've seen in practice is that many of these protective petitions end up being abandoned at the end of the day because the person gets withholding relief, or because they just don't want to pursue the petition. So, it really is just a waste of resources in many cases.
Justice Sotomayor (01:44:58):
Could I speculate and say you are right? If we accept Amicus' argument, basically CAT orders won't be reviewable in those places where the courts don't want to stay the appeal of a petition for removal. That would happen for aggravated felons, and some people might say, "Well, that's a good thing. Congress didn't want them to delay deportation any longer than necessary." So, I could see some people saying, "Don't worry about those guys, okay?" But doesn't the board, in a fairly significant number of regular asylum cases, regular petitions for removal, where the person's not an aggravated felon, or someone else who's done something other than be here illegally, doesn't the board often split those decisions?
Mr. McDowell (01:45:55):
It does. It does, Justice Sotomayor.
Justice Sotomayor (01:45:57):
So, it affirms the petition for removal?
Mr. McDowell (01:46:01):
Yes.
Justice Sotomayor (01:46:02):
But it remands-
Mr. McDowell (01:46:03):
That's correct.
Justice Sotomayor (01:46:04):
… for the CAT claims? And under Amicus' position, those people who are not aggravated felons, those people then are deprived totally of the zipper clause, correct?
Mr. McDowell (01:46:17):
That's right. And if I could just make two points in response to this idea. The first, as to your initial premise about aggravated felons, I do think that if Congress wanted to preclude judicial review of CAT claims for aggravated felons, it would have said so expressly. That's what it did in section 1252(a)(2)(c) when it precluded aggravated felons raising factual challenges to removal orders.
(01:46:39)
But as to this mixed decision idea, which we raise on pages 38 to 39 of our opening brief, you have it exactly right. I think the upshot of Amicus' reading of the statutory definition would be that there would be no review of the agency's withholding decision on remand. And again, that would be in an ordinary removal case, outside of the expedited removal context. Judge Murphy's concurrence in the Sixth Circuit decision that we cite flags this exact issue and says that this is a potential spillover consequence of reading Nasrallah and the statutory definition quite broadly, as Amicus is doing here.
Judge Murphy (01:47:14):
On the first point, you seem to be suggesting that there's some kind of clear statement rule before Congress, who would deprive judicial review of CAT claims. I'm just wondering about the origins of that, or if that's what you're saying.
Mr. McDowell (01:47:27):
I didn't mean to be suggesting a clear statement rule. It's a structural point about the INA. In the INA, throughout the statute, when Congress wanted to preclude review of categories of claims, we see it over and over that it does so with express language. And here, Amicus is not pointing to any express language precluding review of CAT claims by aggravated felons. Instead, he's pointing to what is really just a generic 30-day filing deadline as a way of arguing that Congress indirectly or implicitly precluded judicial review of these claims. And I just think that as a structural matter, that's hard to square with the INA, its context and its structure.
Justice Jackson (01:48:05):
And haven't we also said in Guerrero-Los Reyes that there's a presumption of judicial review, that we not foreclose the possibility of judicial review over agency action unless there's clear and convincing evidence that Congress intended that result?
Mr. McDowell (01:48:21):
That's right, Justice Jackson. We don't think you actually need to get to the presumption in this case, because we think the statutory structure and the context are sufficiently clear to show that Congress wanted review of these claims, particularly section 1252(a)(4), which is what I referenced in my introduction. But we don't deny that if the statute were truly ambiguous, that the presumption would apply here. We just don't think you need to get to that here.
(01:48:44)
And just to get back to the section 1252(a)(4) point, Justice Thomas, that is express textual evidence that Congress wanted there to be judicial review of CAT claims. And I think it stands to reason. And then, we also have Nasrallah, which says that CAT orders are reviewable together with removal orders. And so, I think it really does stand to reason that a CAT order must become final at the same time as a removal order, so that a person can consolidate challenges to both orders into the same petition for review, which is what the zipper clause contemplates.
(01:49:15)
Another way of seeing the same point is that it's unlikely that Congress would've given express textual evidence that CAT claims are reviewable, but at the same time, written a deadline so short as to render many of those claims unreviewable. Normally, Congress doesn't give with the one hand and then take with the other in that sort of manner.
Justice Samuel Alito (01:49:34):
Under your position, is it the case that an order that is final is rendered non-final by the filing of the subsequent application?
Mr. McDowell (01:49:45):
No, that's not our position. Our position is that when a person has a withholding-only claim, the section 1228(b) removal order does not ever become final until the withholding-only claim is resolved. It's not that it is final and then becomes non-final. It's that it never became final in the first instance until those proceedings are resolved. And that's because-
Justice Samuel Alito (01:50:06):
Okay. What is the time requirement for filing a withholding-only claim?
Mr. McDowell (01:50:10):
The regulations contemplate that the claim is raised with the agency before the section 1228(b) removal order is issued. And here, it was raised immediately after. So, if there were a situation where a person didn't raise it for 30 days after the entry of the section 1228(b) removal order, we would agree that at that point, the order would be final and the petition for review timeline would have run.
(01:50:35)
But here, and as is usually the case under the regulations, these claims are brought contemporaneously with the entry of the section 1228 removal order. The problem is that the resolution of those claims takes much longer because these are often very fact-intensive claims, as opposed to a section 1228(b) removal order, which has very little process because it's meant to be expedited.
Justice Samuel Alito (01:50:56):
And how long, do you know by any chance how long on average it takes to resolve CAT claims?
Mr. McDowell (01:51:01):
We don't have exact numbers, but my sense is it usually takes several months if it's a serious claim. If it's a meritless claim, these can be resolved fairly quickly because the asylum officer will say that there's no negative, or there's no reasonable fear. Then, the immigration judge will sustain that. And both of those officers have to make those decisions within a 10-day span. So, they can sometimes be resolved relatively quickly.
(01:51:25)
But here, when it's a serious claim, here the IJ actually found that he was entitled to CAT relief, and then that was reversed by the BIA. When it's a serious claim like that, it can sometimes take several months to even over a year. The dissent in Guzman Chavez pointed to some instances where they took multiple years, I believe.
Justice Samuel Alito (01:51:42):
So, as between the two, in light of that, as between these two options, which one is preferable and why? The first would be the requirement that a prophylactic petition for review be filed, and the second would be your position, that there's no need to do anything until after the CAT claim is resolved. Do you think that there's a risk that your position would lead to greater delay?
Mr. McDowell (01:52:15):
I don't think it would lead to greater delay because people are going to have incentives to bring these withholding-only claims no matter what. Because they can always bring the claim before the agency, and the removal order will be stayed pending the agency's resolution of the claim. So, these claims are going to be brought either way if there's a plausible reason to bring them.
(01:52:33)
The only additional delay under our interpretation versus Amicus', and I'm setting aside the protective petition scheme, which I've already discussed, but the delay here would be the time needed for the court of appeals to review the withholding-only determination.
(01:52:48)
And I also want to just point out, in terms of any public safety concerns about giving this additional time or additional process to aggravated felons, it's important to bear in mind that they can be detained throughout the entirety of the agency proceedings, as well as subsequent judicial review proceedings. And this court affirmed that power in Guzman Chavez.
Justice Kagan (01:53:09):
So, just as a matter of government practice, when you have the order of removal, but the CAT proceedings have not yet been concluded, what does the government feel itself free to do with the alien?
Mr. McDowell (01:53:22):
So, the removal order would be stayed as to the designated country of removal, so we would not be able to remove the person to that country. There is this issue of third-country removal. And in that circumstance, I want to first point out that under Title VIII, DHS does not pursue third-country removal while the withholding-only proceedings are ongoing. But if it were to, the way it would work is this.
Justice Kagan (01:53:47):
So, let me make sure I understand that. You think you have the legal right-
Mr. McDowell (01:53:52):
That's right.
Justice Kagan (01:53:52):
… to send the non-citizen to some other country, where he doesn't have a CAT claim, but, in fact, the US government does not exercise that right?
Mr. McDowell (01:54:02):
Under Title VIII, we do not do that as a matter of practice. We do think we have the legal authority to do that with the following caveat. We would have to give the person notice of the third country, and give them the opportunity to raise a reasonable fear of torture or persecution in that third country. If they raise that reasonable fear, the withholding-only proceedings would simply continue. They would just focus on the new country rather than the original one.
Justice Kagan (01:54:25):
But you don't have the legal power to remove the person to the country for which there is a pending CAT claim?
Mr. McDowell (01:54:31):
That's exactly right. The regulations prohibit that. And that's another reason why we think that confirms that the removal order doesn't actually become final until the end of withholding-only proceedings. The withholding-only proceedings affect the implementation of the removal order for that very reason. If a person is granted CAT protection, that means that the person cannot be removed to the designated country of removal.
Justice Roberts (01:54:54):
Thank you, Counsel. Justice Thomas, anything further?
Justice Thomas (01:54:57):
Would the party have to request consolidation with the removal order proceedings?
Mr. McDowell (01:55:07):
Under our position?
Justice Thomas (01:55:07):
Yeah.
Mr. McDowell (01:55:08):
Under our frontline position? No, because the removal order does not become final until the end of the CAT proceedings. Only after the CAT proceedings conclude would the person be able to file the petition for review. It would be exactly the way it works in ordinary litigation, where the appeal is filed after the entirety of the district court proceedings have come to a conclusion. That's what we're proposing here.
Justice Thomas (01:55:30):
So, how would that work in this case? You have a removal order that's being appealed, right? A final order?
Mr. McDowell (01:55:41):
So, in this case, the petitioner brought his petition for review after the CAT order was issued. And we are saying that that was okay because the order of removal did not become final until the end of the CAT proceedings. So, his petition here was timely because it was within 30 days of the CAT order. And the CAT order was what rendered the removal order final.
Justice Roberts (01:56:06):
Justice Alito?
Justice Sotomayor (01:56:07):
In this case, if we were to hold that the 30-day deadline is not jurisdictional, not jurisdictional, but waivable, and if we disagree with you and accept Amicus' second position, that a final order of removal is final when it's issued, regardless of the CAT, will the government honor their commitment to waive the deadline for Mr. Riley?
Mr. McDowell (01:56:40):
Yes, we would.
Justice Roberts (01:56:46):
Justice Gorsuch? Mrs. Jackson? Thank you, Counsel. Mr. Hammer?
Mr. Hammer (01:57:04):
Mr. Chief Justice, and may it please the court. Congress has barred courts from reviewing claims under the Convention Against Torture, except on a petition for review of a final order of removal. Under section 1252(b)(1), such a petition must be filed not later than 30 days after the date of the final order of removal.
(01:57:22)
The Fourth Circuit correctly held that Mr. Riley's failure to comply with that deadline meant it was jurisdictionally barred from reviewing his petition. The Fourth Circuit rightly recognized that the filing deadline is jurisdictional. This court already held as much in Stone, which is a jurisdictional precedent in both reasoning and result. And Santos-Zacaria, which was focused on the INA's separate exhaustion provision, didn't disturb the deadline's jurisdictional status. The Fourth Circuit also correctly held that Mr. Riley's petition was untimely.
(01:57:52)
The only order of removal in this case is the final administrative removal order. Section 1228(b), the INA's statutory definition of a final order of removal, and section 1231 all confirm that a final administrative removal order is, as its name indicates, final when issued. And as this court explained in Guzman Chavez, the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings. Because Mr. Riley failed to file his petition for review within 30 days of his final order of removal, the Fourth Circuit correctly dismissed it as untimely. I welcome the court's questions.
Justice Thomas (01:58:29):
How do you respond to the arguments that have been made this morning, that this expands the time for the removal order?
Mr. Hammer (01:58:42):
I think that the statutory deadline requires filing the petition for review within 30 days of the final order of removal. And I think statutory text and context make clear that a final administrative removal order is final when it is issued.
Justice Thomas (01:58:54):
So, what do you make of the argument that… I asked the other side whether or not what textual basis they had for this. And of course, I don't think there's much, but would you address that?
Mr. Hammer (01:59:12):
Your Honor, the only textual basis that this court has recognized for judicial review of a CAT claim comes from filing a petition for review of a final order of removal in compliance with the requirements of 1252. Nasrallah explained that that allows the court to review a CAT claim, alongside a final order of removal. But if an alien does not file a petition for review within 30 days of the final order of removal, the court is not able to review the CAT claim.
Justice Kagan (01:59:33):
Well, you seem to be assuming that there is a final order of removal, but maybe it's not final until the CAT claim has been resolved. In other words, what this order of removal is saying, it has two parts. First, you're removable, and second, we're going to remove you to Country X. And that second part, which is within you're removable to Country X, that's
Justice Jackson (02:00:00):
That's provisional. It's only Country X if you fail on your CAT claim. So there's sort of like nothing final about a significant aspect of this order.
Mr. Hammer (02:00:12):
So I disagree, Your Honor. Nasrallah made clear that CAT Relief doesn't affect the validity of the order of removal and does not disturb the final order of removal. And Guzman Chavez repeated all of that, making clear that withholding only does not affect the finality of an order of removal. And with respect to what the final order of removal here actually says, I would direct the court to page eight of the joint appendix which says that Mr. Riley was ordered removed to Jamaica or any alternate country prescribed by Section 1231. So there wouldn't be any need for amendment, alternate countries are already there provided by the final administrative removal order, Your Honor.
Justice Jackson (02:00:46):
I don't understand your distinguishing Santos-Zacaria. It seems to me that if Stone's jurisdictional language was binding in the way that you claim, then it would have governed the outcome in that case as well because both of them are in the same provision related to judicial review. So can you just help me to parse them in the way that you have done?
Mr. Hammer (02:01:13):
Yes, Your Honor. I think Stone is a jurisdictional holding as to the filing deadline that it actually considered. I take Santos-Zacaria to be responding to the government's argument in that case that the entirety of the INA's judicial review provision, everything in Section 1252 was jurisdictional and Santos-Zacaria's comments were in reflection to that. But I didn't take any of the comments in Santos-Zacaria to be saying that Stone was not jurisdictional in any respect, even with regard to the filing deadline that it did consider. If Santos-Zacaria had been saying that, it would not have needed to go on in that paragraph to point out that Stone did not address the exhaustion provision that was at issue in Santos-Zacaria.
Justice Jackson (02:01:47):
Well, it's true that Santos-Zacaria came up in a particular context, but it was is responding to the assertion that Stone established the jurisdictional nature of this. Santos-Zacaria pointed out that Stone was a drive by jurisdictional holding, it was pre-Arbaugh. It really didn't do the work that was necessary to establish a binding holding related to the jurisdictional provision.
Mr. Hammer (02:02:24):
So Your Honor, I don't understand either of the comments in Santos-Zacaria to be saying Stone was not jurisdictional with respect to the filing deadline. You have the "did not attend to" comment in Santos-Zacaria. I understand that to be a reference to not applying Arbaugh's clear statement rule. You have the "was not central" comment and I think that is a reflection of the government's argument in Santos-Zacaria about the entirety of the-
Justice Jackson (02:02:43):
All right, we'll play out the counterfactual. If you are right that Santos-Zacaria was not talking about the jurisdictional nature of the provision that Stone was looking at, where does that leave Santos-Zacaria?
Mr. Hammer (02:03:00):
Well, Your Honor, I think it could be a reflection on the entirety of the government's argument in that case that the entirety of the INA's judicial review provision far beyond the filing deadline was not jurisdictional. But even if I'm wrong about those comments and those comments were meant to say that Stone was not jurisdictional in any respect, even with regard to the filing deadline that it did consider, I don't think that was necessary to the result in Santos-Zacaria. Santos-Zacaria was focused only on the separate exhaustion provision. That was not at issue in Stone. And I think I would take the lesson from this Court's decision and thrive to be that when the issue is what this court held in a prior decision, this court should look to that prior decision and not a subsequent opinion and interpreting it.
Justice Barrett (02:03:34):
Mr. Hammer, can you think of another situation in which judicial review is precluded just by virtue of the way the fast track or the two track system works? In other words, we're not looking at a situation… I mean, putting aside the zipper clause, but we're not looking at a situation where Congress has said in expressly that in this situation where you have a fast track removal, judicial review is precluded, it's simply by operation of the fact that the removal order is going to have to be executed before the withholding claim gets all the way through. Is there another situation like that?
Mr. Hammer (02:04:06):
So two responses, Your Honor. First, I don't think judicial review of orders concluding withholding only proceedings is precluded by the Fourth Circuit's reading. The parties have identified various ways by which aliens could obtain review of those orders and acknowledge-
Justice Barrett (02:04:17):
The government's kind of disclaimed that now. If those aren't, in this hypothetical, just assume those are off the table.
Mr. Hammer (02:04:23):
Yes, Your Honor. If those are off the table, if those are not valid then I think this is a unique form of judicial review. I'm not aware of another one that is like this that allows CAT claims to be reviewed but only if you file a petition for review of a final order of removal. So I'm not aware of an analogy to it, but I don't think it would be surprising if Congress meant to restrict judicial review that it would do it for these particular classes of aliens, aliens who have been convicted of aggravated felonies and illegal re-entrance. That would not be a surprising class given Congress's interest in expediting the removal of those aliens.
Justice Barrett (02:04:51):
Is that consistent with the presumption of judicial review?
Mr. Hammer (02:04:54):
So again, frontline position is that I think there are means available to get judicial review. Setting that aside, I don't think the court needs to resort to the presumption given the plain meaning of the filing deadline.
Justice Barrett (02:05:05):
Would you say then that your argument maybe not hinges but is helped significantly by the available of these alternate routes?
Mr. Hammer (02:05:13):
I think it has helped, but I don't think the presumption needs to be raised at all because I don't think that Texas is ambiguous with respect to what the meaning of a final order of removal is, Your Honor.
Justice Kagan (02:05:21):
But if you're frontline position is that there is judicial review even with respect to these people who are in expedited proceedings, if that's your frontline position, isn't it a quite odd way to write a statute to say, yes you get judicial review, but we're going to set up a 30-day deadline which effectively precludes you from ever getting that judicial review?
Mr. Hammer (02:05:45):
Well I think it wouldn't preclude you from getting the judicial review if these alternative means are available. It would just require you to file the protective petition and hold it in abeyance, which the government represents has been done in the Fourth Circuit since its decision. And I think this court has clear that administrative burden or complexity is not a reason to depart from the plain meaning of the statute. But I also think there was a good reason for Congress to do it this way and I think this relates to the policy consequences of Mr. Riley's in the government's position. So Mr. Riley's in the government's position separates administrative finality on the one hand from finality for purposes of judicial review on the other. And by doing so they create a risk that aliens can be removed from the country to a third country during withholding only proceedings without ever having the chance to go into court and get a stay.
(02:06:25)
That's a significant policy problem and that's because as everyone here agrees, the final administrative removal order is administratively final as soon as it's issued. That authorizes the government to remove the alien to a third country so long as the government provides a notice of that and the alien doesn't have a fear of persecution or torture in that country. But as long as withholding only proceedings are ongoing according to Mr. Riley and the government, there will not be a judicially final order and so the alien won't be able to go into court and get a stay. That's a particularly significant problem because there will be cases in which aliens both want to challenge the validity of their 1228B orders and seek withholding relief and those aliens will be put to a difficult choice.
(02:07:01)
They will either need to forego their withholding proceedings so that they can immediately get judicial review and a stay of their 1228B orders or risk it, go into withholding proceedings knowing that there's a chance they might be removed to a third country before ever having the chance to go into court and get a stay. That cannot happen on the Fourth Circuit's reading because the Fourth Circuit's reading marries administrative finality with finality for purposes of judicial review.
Justice Sotomayor (02:07:22):
I'm sorry, I thought that there was a stay for the petition for removal when a CAT claim is made within the 30-day period.
Mr. Hammer (02:07:32):
There is not, Your Honor, and the government explained that, the government believes itself and does in fact have the authority to remove an alien to a third country-
Justice Sotomayor (02:07:39):
To a third country, but they said you forgot the subject to, subject to notice in an opportunity to file an amended CAT claim on the new designation. So it's not an open-ended thing. And you answered Justice Barrett by saying, "It makes sense that aggravated felons and people who have come back illegally shouldn't have expanded appellate rights under CAT," but the government has conceded that people who haven't had either of those two situations who have appealed to the board and are subject to the zipper clause in terms of the 30-day period, the board not infrequently affirms the petition for removal and remands the petition, the CAT claim. You're saying those people can't appeal either?
Mr. Hammer (02:08:33):
Your Honor, I think that generally in those cases aliens would have the opportunity to do it and that's because of the board's particular remand policy. So under a 1978 board decision called Matter of Patel, when the board remands a case, it's a general or plenary remand that allows reconsideration of any issue on remand unless the board-
Justice Sotomayor (02:08:48):
But not the position for review if they've affirmed it.
Mr. Hammer (02:08:51):
It would allow for reconsideration of the removability decision by the IJ unless the board expressly limits the remand to that withholding issue. So to take your hypothetical, if the board did expressly limit its remand to the withholding issue, then yes, it's possible that scenario would arise.
Justice Sotomayor (02:09:05):
Well that's how I sort when I was on the circuit court, which is the boards would affirm the final orders of removal and remand just on the CAT claims. They did it routinely.
Mr. Hammer (02:09:19):
So yes, Your Honor, the board has the option to expressly limit its remand to the withholding issue. I would just note that in these situations aliens will also often be seeking asylum in addition to the withholding claim and because asylum does go to the validity of the removal order, it would forestall the finality of the removal order while the asylum claim was being considered.
Justice Jackson (02:09:36):
Can I go back to Justice Barrett's question about the presumption? I guess I don't understand why the text of the statute is not ambiguous concerning the meaning of final order in the expedited removal context. When you look at the definition, both prongs of it are pegged to a determination by the Board of Immigration Appeals, which doesn't happen in the expedited removal context. So why couldn't that be a basis for determining that this was sufficiently ambiguous that the presumption kicks in?
Mr. Hammer (02:10:11):
So two points, Your Honor. First, we don't think the presumption comes up so long as these alternative beings of getting judicial review are available like the protective petitions.
Justice Jackson (02:10:18):
But I'm sorry, I thought the standard was whether the statute was ambiguous, not whether there's some other way we could figure this out.
Mr. Hammer (02:10:25):
Well judicial review would be available if you can file a protective petition, then judicial review would be available. So the presumption wouldn't help resolve anything. You get-
Speaker 2 (02:10:34):
I think Justice Jackson's point is the presumption of reviewability helps us interpret statutes and if the statute's ambiguous then it kicks in and it has nothing to do with facts on the ground and you can achieve skin the CAT some other way. You want to respond to that?
Mr. Hammer (02:10:50):
Yes, Your Honor. This court has said that when… and this is Thunder Basin, footnote eight, because Court of Appeals review is available, this case does not implicate the strong presumption that Congress did not mean to berate all forms of judicial review.
Speaker 2 (02:11:01):
Yeah, but if the statute, what do you say though? It seems to me 1101-A47 when it defines final order really is paid to the board's decision one way or the other, and here we have none.
Mr. Hammer (02:11:16):
So Your Honor, I acknowledge that Congress could have spoken more directly to this situation-
Speaker 2 (02:11:20):
But could have spoken to this situation at all, right?
Mr. Hammer (02:11:23):
Well I think it could have spoken more directly, I'll acknowledge that, Your Honor, but I think it's clear in light of Section 1228BB, which does speak directly to this situation in two critical places. So Section 1228BB-4F calls an order entered under that subsection a final order of removal using exactly the same language that Section 1252 does itself. And that's only confirmed by Section 1228BB-3 which imposes a stay or a bar on the removal of the alien for 14 days from the date of issuance of that order in order that the alien has the opportunity to apply for judicial confirming that that order is final when it is issued. And I think-
Speaker 2 (02:11:56):
If we didn't have Stone, just to shift gears a little bit, would you read 1252B-1 as jurisdictional?
Mr. Hammer (02:12:04):
Your Honor, I acknowledge that the filing deadline likely would not satisfy the clear statement test apart from Stone. Just to mention the definition a little bit more, Your Honor, I think the best way to understand this, that is a statute-wide definition. It applies by its terms to the entirety of INA. So it covers Section 1228BB, and I think the best way to read it is to reconcile it with 1228B, particularly in light of the history of the two provisions, the predecessor to Section 1228BB that originally dispensed with a need for a hearing before an immigration judge was adopted in 1994, DOJ adopted regulations implemented it in 1995 that did away with a need for any board review. So by the time Congress came in EDPA in 1996 to add this definition, it already had this part of the statute. It already knew the statute called this a final order of deportation and yet it adopted this definition. I think the best way to read it together with that is to reconcile it to say that the period for board review expires immediately when no board review is allowed.
(02:12:58)
But if you disagree with me on that, I think Section 1228B itself answers this question and it's strongly supported by Section 1231 and what this court said about administrative finality and Guzman Chavez as the government acknowledges in its reply-
Speaker 2 (02:13:10):
What do you say about the possibility that some courts of appeals won't allow these protective appeals to sit on their books for years on end?
Mr. Hammer (02:13:19):
Your Honor, I think this court could provide guidance about the situations in which those motions for abeyance should be granted. The court has done something similar in the habeas context in Ryan's versus Weber where it authorized a stay in abeyance procedure for district courts so that habeas petitioners could go into state court to exhaust their claims before coming back. This court could authorize something like that. I don't think that's necessary here, Your Honor, because I think the mean that the filing deadline is plain, but the court could provide guidance in that way.
Speaker 1 (02:13:48):
Counsel, you say that Stone's rejection of tolling indicates that it's a true jurisdictional holding, but tolling can be unavailable in equitable proceedings as well, can't it? Or when the deadlines are equitable?
Mr. Hammer (02:14:04):
Yes, Your Honor. It is true that some claim processing rules also foreclose tolling, but they don't do it in the way that Stone did. So this court in Irwin held that non-jurisdictional statutory deadlines are presumptively amenable to equitable tolling. We see nothing like a rebuttal in Stone of that presumption of equitable tolling. Instead we see the automatic and reflexive connection of the court's holding that the deadline is jurisdictional to the consequence that it doesn't allow for equitable tolling. That's the exact opposite of what happened in Beckeley, the case that this court analyzed in Wilkins and said didn't count as a definitive jurisdictional precedent. It had an extensive analysis of equitable tolling and the court said if it was a true jurisdictional deadline, it wouldn't have needed that extensive analysis. And that's exactly what we have in Stone, a direct and immediate connection between the conclusion that the deadline is jurisdictional and the consequence that it doesn't allow for equitable tolling.
Speaker 1 (02:14:52):
Well you also argue that the citation of the cert deadline and the appeal deadline is very, very significant here, but those seem to be quite different in the sense that you're dealing with the vertical deadlines of quite some significance. And I wonder whether that is a particularly compelling analogy.
Mr. Hammer (02:15:20):
Your Honor, I think it was the analogy that the court found compelling in Stone, it was the analogy that supported the court's ultimate conclusion that the deadline was jurisdictional and engaged in this extensive analysis comparing the deadline to file a notice of appeal from a final order of deportation to the time to notice of an appeal from a district court judgment, which as you point out, this court has recognized as jurisdictional both before and after Arbaugh. The court also compared the effect of the motion for reconsideration to the effect of a Rule 60B motion which doesn't strip the Court of Appeals of jurisdiction. And I think that the force of that analogy is that shows the court understood the filing deadline as a window of time at which the Court of Appeals could assert jurisdiction regardless of any motion for reconsideration and after which it could not assert jurisdiction just like in the notice of appeal context. I think all of that analysis supported what happens on page 405 of Stone and shows that the court truly meant what it said when it said that the deadline was jurisdictional.
Justice Jackson (02:16:09):
But just to underscore, Justice Gorsuch's point under our modern jurisprudence, you would agree that it's not jurisdictional, that you are relying on the Stone precedent as the reason why we should hold that it's jurisdictional here.
Mr. Hammer (02:16:25):
I am relying on the Stone precedent, Your Honor, and I think this is exactly the situation in which statutory stare decisis has its effect. As this court recognized in John R. Sand & Gravel abiding by this court's statutory decisions serves important system-wide reliance interests promotes the overall stability and predictability of the law. And it's particularly important here because just a year after Stone, Congress and IRIRA further restricted the availability of judicial review.
Justice Jackson (02:16:48):
And we can rely on Stone to reach the jurisdictional holding that you would like us to reach. Notwithstanding Santos-Zacaria's statement that in Stone, whether the provisions were jurisdictional were not central to the case.
Mr. Hammer (02:17:04):
Yes, Your Honor. I don't understand that statement to be reflecting on Stone's analysis of the deadline. And to the extent I'm wrong about that, I don't think that was part of Santos-Zacaria's holding. I don't think it would bind this court, just like in the Thrive case, Your Honor.
Justice Kagan (02:17:18):
Mr. Hanna, when I asked you before why we should think of the order of removal as final, given that it's distinctly non-final, distinctly provisional as to an important aspect, which is where you're going to remove the person too. You countered to me Nasrallah. Is there anything else that you would say about that question or is this like you think, look, that's what Nasrallah forces you to do, is to think of that order as final even though it's not final as to where the person can be removed to. Is there anything else other than Nasrallah?
Mr. Hammer (02:17:53):
Yes, Your Honor. I think it's a strong point that this order allows the removal even while withholding only proceedings are ongoing of the alien to a third country, the order does not have to be amended-
Justice Kagan (02:18:03):
So it has settled the question of whether you can remove the alien to any other country, but it has not settled the question as to whether you can remove this person to Jamaica here. So that continues to be an up-for-grabs question. And as I understand the government's argument, it's like as long as that's an up-for-grabs question, the order is not final. Now you come back and you say Nasrallah. So I take the point we have to now go read Nasrallah and see what it said and what it didn't say, but I'm not hearing anything else from you.
Mr. Hammer (02:18:39):
Your Honor, no, I think the statutory text itself, so we talked about 1228B and the clear indications that that order is final when issued. 1231 also confirms that.
Justice Kagan (02:18:47):
Yeah, I'm sorry, what in that tells you it's final is issued?
Mr. Hammer (02:18:50):
It's called the final order of removal.
Justice Kagan (02:18:52):
Well, the question is what is a final order of removal?
Mr. Hammer (02:18:55):
Okay, so Section 1228B-3 indicates that you can seek judicial review within 14 days of the issuance of the order, which would not be possible if withholding only proceedings suspended the finality of that order. So I think that's a strong indication that it's final. But I would also point to Section 1231 and what this court said about administrative finality in Guzman Chavez because many of these arguments were also raised in Guzman Chavez, that indeterminacy as to the where question suspended the finality of the removal order. And the court rejected that for purposes of administrative finality in Guzman Chavez. I think there's a strong presumption that also governs finality in Section 1252 and we can see evidence of that in the statutory text in Section 1252- B8A, which cross-references Section 1231 and uses the words a final order of removal to indicate the beginning of the removal period under Section 1231.
(02:19:39)
So Congress is using these two terms interchangeably and for the reasons we discussed, it makes sense for them to do so because administrative finality is the point at which the alien is then put at risk of being removed to a third country. It doesn't make sense to have judicial finality for purposes of judicial review, be suspended for some period of time while the alien is at risk of being removed to a third country.
Justice Kagan (02:20:02):
Thank you.
Speaker X (02:20:08):
[inaudible 02:20:04]. Okay.
Speaker 1 (02:20:12):
Thank you, Counsel. Mr. Bradley Rebuttal.
Mr. Bradley (02:20:22):
Thank you. A couple of observations, really three things I'd like to say. One is on the question whether somebody can be removed to a third country while withholding proceedings are in process. I'd like to point the courts to the regulation at our Appendix 29A in the petition that says such alien shall not be excluded, deported, or removed before a decision is rendered on his or asylum application. And that term is defined in the regulation to include the withholding claims. So it is as the government, and we have said that while they have the statutory authority to remove you to somewhere else, the actual administrative process is that by their own regulations, they cannot unless they designate another country. This is actually 20A in the appendix, that they must designate the country of removal and then give you another chance. If it's a third country, you might raise an objection as to that one.
(02:21:22)
By contrast, in the judicial process, of course, there is no automatic stay. This was a change in IRIRA. We have a stay in this case, but that is within the discretion of the circuit courts. I'd like to come back to 1228B-3. This is the provision that says that there is a pause for 14 days, that has a great deal of force in a case where there is no withholding claim, but there's nothing about that provision that shows it was intended to cover every case. It is a limited protection of limited benefit for certain circumstances, not all of them. Third, I'd like to come back to this question of the protective petitions. It is more than simply that the courts would have to hold them in abeyance. The government is right about the volume that you will have to petition in every case because you won't even know yet what the IJ's or BIA's decision will be and whether there will be grounds to challenge it.
(02:22:23)
In addition, you'll have to be filing a petition in response to which the government is supposed to file the administrative record for a case that is still ongoing and you're still building the administrative record. So the headaches for doing this nationwide are contrary to any other judicial review scheme that I can think of.
Speaker 1 (02:22:46):
Thank you, Counsel. Mr. Hammer. This court appointed you to brief and argue this case as an amicus curiae in support of the judgment below, you have ably discharged that responsibility for which we are grateful. The case is submitted.
Justice Sotomayor (02:23:03):
The Honorable Court is now adjourned until tomorrow at 10 o'clock.
