Cite as: 602 U. S. ____ (2024)
33
KAGAN, J., dissenting
to all the same data Ragusa did. He even had access to Ragusa’s computer code, so that he would not have needed to
start from scratch. See id., at 58. He could just have rerun
the code after fixing whatever variables he thought wrong.
What should one make of Trende’s failure to do so? If I were
adopting the majority’s methods, I would draw an “adverse
inference” from the decision not to submit such “easily
churn[ed] out” evidence. Ante, at 30. Surely it must count
as an “implicit concession” by the State that the statistical
analysis, even with the desired fixes, would keep showing
evidence of a racial gerrymander? Ante, at 31. But I don’t
need to create a novel adverse inference to make the critical
point. It was hardly clear error for the District Court to
credit the Challengers’ statistical evidence about race’s predominant role when the State presented no similar evidence to support its partisanship theory. The majority’s
contrary view—that the State’s nothing necessarily beat
the Challengers’ something—is one more tell that it has left
the proper review standard way behind.
III
In every way, the majority today stacks the deck against
the Challengers. They must lose, the majority says, because the State had a “possible” story to tell about not considering race—even if the opposite story was the more credible. Ante, at 16. And they must lose again, the majority
says, because they failed to offer a particular form of proof—
which they did not know would be relevant and which this
Court recently told plaintiffs was not required. It does not
matter that the Challengers offered extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting. It does not matter that the State, by way of response, offered little more
than strained and awkward denials. It does not matter that
three judges—entitled to respect for their factual findings—
thought that those denials were not believable, and did not