Well That's One Way To Put It

Mississippi is currently engaged in litigation over whether its State Senate district boundaries diluted the voting power of Black residents. Shocking, I know. A district court found that Mississippi had acted illegally, and the Fifth Circuit refused to stay the decision pending appeal.

Judge Edith Clement dissented from that decision. And she chose an interesting descriptor for the panel majority, whose opinion she believed was out-of-step with what the majority of active Fifth Circuit judges would have decided:

This case presents several extraordinary issues. Unfortunately, this court’s usual procedures do not appear to permit en banc review of this denial of a stay even if a majority of the active judges would otherwise grant it. I am afraid defendants have simply had the poor luck of drawing a majority-minority panel.

Now, to be clear, all three judges on the panel were White. Judge Clement is literally referring to the fact that the majority on the panel on the issue of a stay would have likely been a minority on this issue were it to go to the full court (while she doesn't say so directly, the logic is almost certainly that the case would break down on partisan lines and the Fifth Circuit currently has a GOP-appointed majority).

Nonetheless: this is certainly a striking phrase to use in a race discrimination/voting rights case. "Majority-minority" is not an esoteric term in this context; Judge Clement is well aware that it is almost exclusively used to refer to districts whose population is predominantly made up of racial minorities (literally: it is majority-minority). That is the evocation that any reader -- certainly any reader familiar with voting rights cases -- will hear.

And so its use here -- as part of a dissent where Judge Clement thinks the panel majority is being too solicitous towards minority voters in Mississippi -- does not feel accidental. It feels much more dog-whistle-y, and those whistles have been getting much more audible as of late.