Opinion analysis: Removing discretion in convening three-judge district courts
The outcome in Shapiro v. McManus, considering when a case must be referred for a three-judge district court, seemed preordained from oral argument. The Justices asked fewer questions than usual, but all seemed highly skeptical of the state of Maryland’s positions. And Justice Antonin Scalia found himself able to say only “Wow” about some implications of the government’s argument.
Unsurprisingly, the Court today ruled unanimously, in an opinion by Scalia, that a three-judge district court must be convened in any action challenging the constitutionality of the apportionment of congressional districts, and that single judges do not have discretion to decline to refer an otherwise-qualifying case.
Under 28 U.S.C. § 2284(a), as amended in 1976, a three-judge district court is mandated for all actions challenging apportionment of congressional districts. Section 2284(b)(1) then provides that upon filing of a request for three judges, the district judge to whom the request is presented “shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges to serve.” Further, under Section 2284(b)(3), only the three-judge court, not a single judge, can enter judgment on the merits. The three-judge court’s judgment is immediately and automatically reviewable by the Supreme Court.
The Court insisted that the text of Section 2284(a) “could not be clearer.” If a case challenges the constitutionality of apportionment of congressional districts — as no one disputed is the case here — the district court is required to refer the case to the three-judge court. That section “admits of no exception, and ‘the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.’” Section 2284(b)(1) should not be read to add any discretion, proviso, or exception to that mix. Rather, it adds “administrative detail.” It clarifies that, when a request for a three-judge court has been filed, the single judge must first examine the allegations in the complaint to determine whether the case is covered by Section 2284(a), but the judge can do “no more, no less.” Scalia found further support from Section 2284(b)(3)’s prohibition on single judges entering judgment on the merits, insisting it “would be an odd interpretation that allowed a district judge to do under [Section] 2284(b)(1) what he is forbidden to do under [Section] 2284(b)(3).” Instead, in any case satisfying the criteria of Section 2284(a), Congress wanted the final judgment to come from the three-judge court, not the single judge.
Scalia made similarly quick work of the state’s alternative argument that a three-judge court was unwarranted here because the voters’ constitutional claim is “insubstantial.” The Court accepted the continued validity of a pre-1976 line of cases, notably Goosby v. Osser, that a three-judge court was not required for insubstantial constitutional claims. But Goosby was not, as the Fourth Circuit allowed and as the single judge did here, a license for single judges to dismiss when the allegations fail to state a claim for relief on the merits. Instead, Goosby reflects the long-standing distinction between an insubstantial claim for jurisdictional purposes and a claim that fails on the merits. A court lacks jurisdiction only if the claim is wholly insubstantial and frivolous; Goosby itself spoke of claims that are essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit. “Absent such frivolity,” the Court insisted, failure to state a claim involves a judgment on the merits. And in a non-frivolous case covered by Section 2284(a), only the three-judge court, not a single judge, can make that judgment.
The voters’ claim here “easily clears Goosby’s low bar.” The amended complaint explicitly challenges Maryland’s apportionment along the lines of Justice Anthony Kennedy’s concurrence in Vieth v. Jubelier, in which Kennedy suggested that a justiciable First Amendment case could lie if a state gerrymander had the purpose or effect of burdening a disfavored party and its voters. Whatever “wholly insubstantial” might mean, the Court said, “at a minimum [it] cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases.” While the voters’ claim might ultimately fail on the merits, the district court has jurisdiction, thus the voters are entitled to present those merits to a three-judge district court.
The Fourth Circuit’s prior approach, allowing single judges to dismiss for failure to state a claim, was something of an outlier among the lower courts. Today’s decision therefore is unlikely to have a dramatic effect on the Court’s docket of apportionment cases. But the decision makes clear that all such challenges to states’ legislative apportionment decisions — for example, the two cases argued today (Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott) — will be heard by a three-judge court with direct and mandatory review in the Supreme Court.