The Court’s decision to set the case involving the interaction between the Voting Rights Act and the Fourteenth Amendment, Louisiana v. Callais, for re-argument came as a surprise. The supplemental order we will soon get identifying the new issues the Court wants the parties to brief is likely going to open up broader issues than were clearly presented to the Court in this Term’s briefing.
I have thoughts about which issues the Court might seek to open up for new briefing and argument, from somewhat more case-specific issues to much broader ones about the Voting Rights Act, but I don’t want to speculate since the order will be out soon.
I’d remind readers that Citizens United was also argued twice. After the initial argument, the Court set the case for re-argument the next Term and asked the parties to brief the question whether the Court should overrule one or two of its precedents. I would not say the Court “punted” Citizens United to a second Term. It turned the case into one of far greater significance than it had been presented as the first time around.
I believe Justice Kavanaugh was initially assigned the opinion in Callais. He was the most tentative vote in the 5-4 majority in Allen v. Milligan. I think in the effort to draft the opinion, he persuaded a majority that the narrow racial gerrymandering issue in Callais could not be addressed without opening up larger questions.
If that’s right, we don’t the same case that was just “punted” down the field to be decided in a second Term. We have a new case. We will see shortly exactly what the terms of that expansion will be.
