May 22, 2017

"A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin — to be used once and then tossed in the trash."

"But that is what the Court does today in its decision regarding North Carolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district."

Writes Justice Alito in the dissenting opinion to Cooper v. Harris, a 5-3 opinion released today.
In Easley v. Cromartie, 532 U. S. 234 (2001) (Cromartie II), the Court considered the constitutionality of the version of District 12 that was adopted in 1997. That district had the same basic shape as the district now before us, and the challengers argued that the legislature’s predominant reason for adopting this configuration was race. The State responded that its motive was not race but politics. Its objective, the State insisted, was to create a district in which the Democratic candidate would win. Rejecting that explanation, a three-judge court found that the legislature’s predominant motive was racial, specifically to pack African-Americans into District 12. But this Court held that this finding of fact was clearly erroneous. Cromartie II.

A critical factor in our analysis was the failure of those challenging the district to come forward with an alternative redistricting map that served the legislature’s political objective as well as the challenged version without producing the same racial effects. Noting that race and party affiliation in North Carolina were “highly correlated,” id., at 243, we laid down this rule:
“In a case such as this one . . . , the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance. Appellees failed to make any such showing here.” Id., at 258.
Now, District 12 is back before us. After the 2010 census, the North Carolina Legislature, with the Republicans in the majority, drew the present version of District 12. The challengers contend that this version violates equal protection because the predominant motive of the legislature was racial: to pack the district with African-American voters. The legislature responds that its objective was political: to pack the district with Democrats and thus to increase the chances of Republican candidates in neighboring districts.

You might think that the Cromartie II rule would be equally applicable in this case, which does not differ in any relevant particular, but the majority executes a stunning about-face. Now, the challengers’ failure to produce an alternative map that meets the Cromartie II test is inconsequential. It simply “does not matter.”
This case came out 5-3 because Justice Gorsuch did not participate, and Justice Thomas concurred. Thomas's concurrence sets him apart from the rest of the majority (Kagan, Ginsburg, Breyer, and Sotomayor) because he thinks Cromartie II got it wrong and it's "a welcome course correction" to "confine[] it to its particular facts."

61 comments:

Bill, Republic of Texas said...

So precedents don't matter. Got it.

Now the ball is in your court conservatives.

rcocean said...

Again the 4 Democrat appointees vote like a bloc in favor of the liberal/democrat side. They never stray from the party line. Kagan/Beyer/Sotomeyer/Ginsberg. 4 liberal robots.

And why is the SCOTUS now drawing congressional district lines? Is there any limit to their power or do they stick their nose into everything?

Ron Nelson said...
This comment has been removed by the author.
rcocean said...

“I have no assurance,” Roberts wrote, “that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on
the subject.”

traditionalguy said...

On the surface things changed. In 2001 the need to guarantee a black representative a safe District was liberal ideology.

Today the opportunity to punish North Carolina for the last Presidential election's result is all the liberals want from the Justices. And the moderate Justices refuse to lift their finger to help despised southerners get justice.

Some things never change.



Ann Althouse said...

@rcocean

You might want to notice that Thomas joined the majority and that it was the conservative side of the Court that started the idea that redistricting lines setting up majority minority districts sometimes violate the Equal Protection Clause.

It's the federal statute that has been interpreted require majority minority districts, so when the state does that, as pushed by the Justice Dept., when does it go too far and violate the Equal Protection Clause? It's mostly conservatives who've wanted to involve courts in tightening up that line.

But things have changed over the years as Democrats have noticed that they are hurt by packing way more Democrats into a district than are needed to keep the district Democratic.

There's a lot of confusion about whether this is political gerrymandering or racial gerrymandering and how to understand the evidence when being black is used as a proxy for voting Democratic. Cromartie II was very strange on that subject.

rcocean said...

Althouse - thanks for the clarification.

Yeah, I noticed that Thomas voted with the majority, so I'm inclined to wonder why. I assume he voted the other way in the previous decision.

IMO, a state should have a right to draw its congressional boundaries anyway it wishes - it strikes me as something that covered by the 10th amendment. The same is true of term limits for Congressmen and Senators.

Roger Sweeny said...

Translation: when the push was to get more black representatives, it was fine to racially discriminate to get more solidly black districts. When the push is now to get more Democratic districts by spreading out black voters, it's wrong to racially discriminate.

Of course, it's wrong both ways.

eric said...

Thomas is wrong.

There is no course correction here. It's all political.

They score 7 when they are on offense, we get 1 when we have the ball and score.

Fen said...

Exactly. The same game will be played with the Electoral Collge. When Dems win the popular vote the EC is evil and must be abolished. 4 years later when they lose the popular vote the EC is all about protecting us from mob rule and must be reinstated.

Shorter - whatever promotes the Democrats at that precise moment is the New Black.

n.n said...

Sometimes yes. Sometimes no. Gerrymandering through redistributive change, immigration reform (e.g. refugee crises), etc. [class] diversity.

Mattman26 said...

Thomas certainly has the virtue of consistency. I read his dissent in Cromartie II (Dear Lord, please get someone to teach me how to do HTML tags for italics some day), and it appears his dissent in that case--consistent with his concurrence today--was concerned solely with the level of deference that should be given to the factual findings of the court that actually assessed the witness testimony in the first instance.

Generally, an appellate court (intermediate or Supreme) reviews legal questions (does Statute A prohibit Conduct X?) without any deference to a lower court's determinations, but factual findings, almost inevitably based on live witness testimony, are reviewable only for "clear error," which requires appellate judges to ask themselves, "Even if I'm pretty sure I would have decided this differently, can I really say that the lower court's decision was outside the realm of reasonable?" And if the answer is "no," then you affirm.

That does take a certain degree of self-control, especially where issues that are important to you are at stake.

Fen said...

Dems win round 1 by biting our ear.
Dems win round 2 by biting our ear.
Dems win round 3 by biting our ear.
GOP wins round 4 by biting their ear.

Ref: Enough, ear biting is illegal.

Dems win round 5 by biting our nose.
Dems win round 6 by biting our nose.
GOP wins round 7 by biting their nose.

Ref: Enough. Nose biting is now illegal.

Quayle said...

"A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin — to be used once and then tossed in the trash."

So much for the disposition of paper plates or napkins.

But as for their origins, that paper plate or napkin can be envisioned from afar, floating somewhere over Wichita, then lassoed by the court and made into a divisive precedent and turned thereby into a fundamental right.

Do we got it, Justice Kennedy. paper plates and napkins can appear out of thin air, but they can't be disposed of into thin air.

Todd said...

Mattman26 said...

That does take a certain degree of self-control, especially where issues that are important to you are at stake.

5/22/17, 10:54 AM


That can't be so! The left constantly tells us that Thomas is a poser and had no great legal mind nor intellect. How can he have a true foundational beliefs that he will hold to regardless of the politics of it?

Also, to do the italic tags do this "<" "i" ">" and close with "<" "/" "i" ">".

The more you know!

Birkel said...

So if blacks were less identifiably and predictably Democrats, these cases would not exist.

I think I might see part of the problem.

Ignorance is Bliss said...

Mattman26 said...

(Dear Lord, please get someone to teach me how to do HTML tags for italics some day)

<i>The text you want in italics</i>

<b>The text you want in bold</b>

<a href="the URL you are linking to">The text you want to be a hyperlink</a>

Dave from Minnesota said...

I am confused (not sarcastic, really am). In Milwaukee and Pasco Washington, it was ruled that you need to draw the lines so you have a majority minority districts. To guarantee the right ethnicity in elected offices. But other rulings (or at least political opinions) say you need to split up minorities into various districts, not put them all in one.

Which is the politically correct method? Is it whichever gets your people elected?

Dave from Minnesota said...

The text you want in italics

I've also wondered how to do that.

Birkel said...

@ Dave from Minnesota

See Fen at 10:57 AM.
There is your answer.

Mattman26 said...

Like this?

Eureka! Thanks, Todd and IIB!

And Todd, the Thomas-bashing has always infuriated me. His principles are clear, as is his writing, and people who don't know their ass from a hole in the ground will tell you he's a mediocrity, apparently because they heard it from Harry Reid or some other intellectual giant. Hard to believe there's not a touch of racism at work there amongst our moral betters.

n.n said...

They can't decide if apartheid or assimilation and integration will optimize democratic leverage. There is a consensus that an elective war (e.g. class, sex, abortion, social justice) will be beneficial.

Dave from Minnesota said...

Thanks Birkel.

The Pasco Washington case is interesting (in a frustrating way). A Hispanic lady ran for an at-large school board position. She didn’t campaign, didn’t go door-to-door, didn’t go to public forums, didn’t raise much for funds. Lost.

She and the ACLU sued Pasco, saying having an at-large seat discriminates against Hispanics. So the courts said now all the seats have to be by neighborhood, with at least one being majority Hispanic neighborhood. All because a lady ran for office, didn’t campaign, and lost.

Dave from Minnesota said...

nn, did you see where Harvard is having a separate graduation ceremony for its black students?

Maybe George Wallace was right. (that is sarcasm)

Dude1394 said...

The democrat party and the courts are teaching me a valuable lesson. Go full tribal in all that I do, because everyone else is. La Raza forever!!

Hagar said...

"O, what a tangled web we weave when first we practise to deceive!"

n.n said...

Dave from Minnesota:

One step forward, two steps back. Progress.

I tend to concur with MLK. Principles matter.

Birkel said...

The 2020 Census will be a watermark in this process. Republicans control a record number of legislatures and will get additional seats in reapportionment.

Expect lawfare to go nuclear.

n.n said...

Apartheid or assimilation and integration? This is where political myths are tested and broken...

Hagar said...

It is different when we do it!

AJ Lynch said...

In PA, the Dems have a voter registration advantage of about 800,000 over the Repubs but all of that advantage is concentrated in two cities [Philly & Pittsburgh]. As a result, the Repubs hold 9 or 10 of the total 15 or 16 House seats.

But naturally, the math-challenged and geography-challenged Dems and the liberal newspapers blame the advantage on gerrymandering which I admit is a factor in maybe one district.

Bay Area Guy said...

Heh, Fen nails it:

Dems win round 1 by biting our ear.
Dems win round 2 by biting our ear.
Dems win round 3 by biting our ear.
GOP wins round 4 by biting their ear.

Ref: Enough, ear biting is illegal.

Dems win round 5 by biting our nose.
Dems win round 6 by biting our nose.
GOP wins round 7 by biting their nose.

Ref: Enough. Nose biting is now illegal.


Once Adam Clayton Powell won his Congressional seat in NY (Harlem), the Dems thought making all black voting districts in most urban inner cities, was a wise political decision.

So, they did, and we got maybe 20-30 Blacks in the House.

Problem 1: The Dems kept doing this. And, after the census in 1990, the Bush DOJ joined this kumbaya effort to get more blacks in Congress as a remedy for past discrimination.

Problem 2: A few cynical data-crunchers from the GOP, recognized the simple fact, that if you put all blacks in one district to elect black congressmen, all adjoining districts move incrementally to the GOP camp. Duh, math is hard.

Problem 3: In 1994, the GOP won 53 House seats, and has dominated the House ever since (except for Pelosi hiatus 2006-2010).

Problem 4: "Hey," Dems say in legal papers, "all-black districts are now unconstitutional!"

The beat goes on with these clowns.

readering said...

Sounds like Alito is auditioning for the Scalia spot on the rubber chicken circuit.

rehajm said...

But things have changed over the years as Democrats have noticed that they are hurt by packing way more Democrats into a district than are needed to keep the district Democratic

It took them how long to notice?

Math is hard.

great Unknown said...

Why should "a precedent of the Court..." command any more respect than the Constitution itself?

Kevin said...

There's a lot of confusion about whether this is political gerrymandering or racial gerrymandering and how to understand the evidence when being black is used as a proxy for voting Democratic.

When black people stop voting Democratic in 90% of all cases, we'll be better able to sort this out. Until then, tomato, tomahto.

Kevin said...

Or maybe the Justices should hire former Director Comey to divine the gerrymander's intent? He seems to think he has that superpower and is in need of employment.

Yancey Ward said...

It is important to note how the decision broke down 2001 vs 2017:

In 2001, which upheld the district on the same set of facts, the majority decision was the liberal bloc at that time plus Sandra Day O'Connor. Notably, that majority consisted of Ginsberg and Breyer. The dissent in that 2001 case was written by Thomas and joined by Rehnquist, Kennedy, and Scalia.

In today's decision, you find Ginsberg and Breyer on the opposite side of the decision, Thomas on the same side, and Kennedy on the opposite side. Of those four, only Thomas gets kudos for intellectual consistency, but Kennedy can be given a pass for standing on precedent. Ginsberg and Breyer, however, are simply making the decision based on what the current Democratic Party now wants.

Ann is correct- really the only thing that has changed in the interim is that Democrats finally wised up to how badly racial gerrymandering has hurt them. The real circus will start when the African Americans get spread out and help white Democrats win seats that used to belong to black ones. Then the pendulum swings back?

Comanche Voter said...

No matter how you slice the districting salami, you are going to wind up with strange results. My congress critter is Adam Schiff--may he rot in Purgatory in the hereafter. I haven't moved in 40 years==but my district boundaries have changed. It used to be reliably Republican; but or last Republican congressman was James Rogin, who had the colossal misfortune to be handling floor in the Clinton impeachment effort. Rogin was a marked man; the 2000 House election campaign in my district set the record for campaign expenditures--tossing Rogin out was a national Democrat priority, and they spent like drunken sailors to do it.

And then the Dems in Sacramento fixed things with redistricting after the 2000 census came in. Schiff now represents a district that will vote Democrat until Hell freezes over.

Dave from Minnesota said...

Fun Democrat Gerrymandering story. Minnesota Democrats controlled the 2010 redistricting process. They moved the St Paul CD border east to put more Democrats into Michele Bachmann’s district (offset was removing Republican areas out of her district elsewhere). Didn’t work. She still won, and a moderate Republican easily won the seat after she choose not to run anymore.

Michelle Dulak Thomson said...

As I've said many times before, this is a cynical collusion between the GOP and the CBC. The former want "bleached" districts surrounding cities, and the latter want safe black seats. The Democrats have finally twigged, though, that the Republicans are packing more blacks into majority-minority districts than are strictly necessary for a safe black seat, and are starting to object, realizing that every black vote in a safe district is one lost to a doubtful district. I imagine that a lot of the impetus is not actually from the CBC, but from the general Democratic Party, which isn't keen on the size of the House Democratic caucus being entirely dependent on its skin color.

So the new call is for majority-minority districts to be just black enough to reliably elect a black Congressman, and not a smidgen more. Sure, make it majority-minority, bearing in mind that blacks vote 90+% Democratic, but save as many blacks as possible for the surrounding districts, to make them less Republican.

As I said, all of this is deeply cynical, and none of the three participants exactly comes up smelling like a rose. Garlic, possibly.



Etienne said...

They can draw the district lines however they want, as the same losers will go to Washington and sit on their fucking asses.

They will spend more money than the treasury has, and print money to put back on the shelf.

Dave from Minnesota said...

"But things have changed over the years as Democrats have noticed that they are hurt by packing way more Democrats into a district than are needed to keep the district Democratic"

Could it also be because now pretty much every large city votes about 60-80% Democrat, so you don't need to pack in certain voters to ensure a Democrat victory in a city?

Michelle Dulak Thomson said...

But you don't just want a Democratic seat; you want a black Democratic seat. That's somewhat more difficult to arrange.

robother said...

What does Alioto think? IF the Constitution itself is a malleable thing, evolving to meet the times, why should any opinion of the Supreme Court interpreting that Constitution be more than kleenexes catching the collective sneeze of the majority at that moment? (Except for Roe v. Wade of course: that tissue is preserved in amber, crystallized until the earth itself falls into the sun.)

Achilles said...

""A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin — to be used once and then tossed in the trash.""

Alito knows what the problem is. The left does not value principle nor law nor precedent. You can predict with near 100% accuracy what a leftist pretending to be a judge will rule by looking at which decision aids the progressive cause.

The left wants a nation of men. The whole law thing gets in their way.

Left Bank of the Charles said...

You left out part of the Alito quote: "... unless it is designated as disposable like Bush v. Gore."

Birkel said...

@ Left Bank
The comedy thread is a different one. Your attempt at a joke, though unfunny, was still obviously a joke. Althouse would be proud, and sad.

n.n said...

How do Hispanics, Muslims, and other "minorities" fit in the democratic puzzle?

Is there room for individuals? For babies deemed unworthy?

Should we make character judgments or defer to [class] diversity?

Drago said...

robother: "What does Alioto think?"

Who cares?! But I have loved all their restaurants in San Francisco.

John Tuffnell said...
This comment has been removed by the author.
Gahrie said...

Every Democratic minority member of Congress, except Kamala Harris, is from a Gerrymandered majority-minority safe district. (and you could easily argue that Harris counts because there is no majority population in California and Hispanics make up the largest ethnic group, and the Dems have it sewn up top to bottom.)

Every Republican minority member of Congress is from a majority White district.

jr565 said...
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jr565 said...
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Sebastian said...

“I have no assurance,” Roberts wrote, “that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.” Welcome to the Living Constitution, Johnny boy. And whatcha gonna do about it, huh, Mr. Balls 'n Strikes Umpire?

jaed said...

the challengers argued that the legislature’s predominant reason for adopting this configuration was race. The State responded that its motive was not race but politics. Its objective, the State insisted, was to create a district in which the Democratic candidate would win.

Someone tell me, how is either of these reasons legitimate?

The Godfather said...

@jaed is quite correct that partisan gerrymandering is just as offensive to our sense of fairness as is racial gerrymandering. But the federal courts haven't (yet) had the chutzpah to arrogate to themselves the power to overrule politics. If it were otherwise, then if Pres. Trump gets to appoint (say) two more justices, then Republicans will have a lock on Congress forever. Or if Hillary had been elected last year, the Democrats would have obtained such a lock.

So the Supremes allow partisan districting but draw the line at racially based districting. But when 90% of racial group X votes for party A, how can you distinguish racial gerrymandering from partisan gerrymandering?

I live in NC. I am willing to bet real money that our (Republican-majority) state legislators couldn't care less about whether a voter is black or white, but they care a lot whether he/she is Republican or Democrat.

readering said...

Remember that the case involved two districts and the court was unanimous in disapproving one of the districts. There was a split only on the second.

robother said...

A low blow, Drago. These Eytie names are too much alike, Alito, Alioto. Maybe that's why Bork thought serving on the SCOTUS would be a feast.

David said...
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Paul McKaskle said...

These recent decisions, Cooper and the earlier Virginia case, Bethune, make redistricting decisions by a legislature subject to the whims of an unfriendly or overly political federal district court. Too many Blacks illegal, too few, illegal. What constitutes too many or too few, whatever the federal court decides–and if the Court is biased, the legislature always loses.

There are other problems too. The idea expressed in these two cases is that districts should have no more than the minimum number of Blacks to guarantee their success in electing a candidate of their choice (in other words, Blacks cannot be “packed” into a district) also mandates that a sufficient number of filler people, e.g., whites, must be included in the district with the intention that they will have no effective say in the outcome of the election. In other words, intentionally depriving them any chance of electing a candidate of their choice.

Further, it may well be that a combination of, say 40% Blacks and a sufficient number of sympathetic whites may make the election of a Black likely, but what if there are two competing Blacks with markedly different political ideas–one very left wing (such as being sympathetic to Black Muslim ideas) and the other more “mainstream” (whatever that is). It may be a majority of the Blacks would favor the more left wing candidate but the minority of Blacks, along with the sympathetic whites might well prevail. This would be contrary to the Voting Rights provisions which outlaw districting in which protected minorities have “less opportunity” to “elect representatives of their choice”