Racial Gerrymandering Takes Center Stage as Court Considers Three Cases

The U.S. Supreme Court heard oral arguments in three cases last week. The issues before the Court included choice-of-law clauses, the Sarbanes-Oxley Act’s whistleblower protection, and racial gerrymandering.

Below is a brief summary of the issues before the Court:

• Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC: In its seminal maritime insurance decision in Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310 (1955), the Supreme Court established that “maritime contracts are governed by federal admiralty law when there is an established federal rule, but absent such a rule, state law applies.” One such established federal rule is that “[a] choice of law provision in a marine insurance contract will be upheld in the absence of evidence that its enforcement would be unreasonable or unjust.” The question before the justices is “[w]hether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.”
• Murray v. UBS Securities: Under the Sarbanes-Oxley Act of 2002, when a whistleblower invokes the Act and claims he was fired because of his report, his claim is “governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.” Under that incorporated framework, a whistleblowing employee meets his burden by showing that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” If the employee meets that burden, the employer can prevail only if it “demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” The Court must now decide whether, under the above the burden-shifting framework, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or is the lack of “retaliatory intent” part of the affirmative defense on which the employer bears the burden of proof?
• Alexander v. South Carolina State Conference of the NAACP: The redistricting suit challenges a South Carolina’s congressional map drawn by the state’s Republican-controlled legislature. The district court upheld the challenge, holding that District 1 was an unconstitutional racial gerrymander. On appeal, the justices have agreed to consider the following issues:  (1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent; (2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case; (3) whether the district court erred when it failed to disentangle race from politics; (4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles; (5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and (6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.

Decisions in all three cases will be issued before the Court term ends in June 2024. Please check back for updates.