October 4, 2017

Jeffrey Toobin says "Ginsburg Slaps Gorsuch in Gerrymandering Case," and I found the video:



Yeesh! That was intense!

Now, what was that all about? As Toobin explains it, in yesterday's oral argument in Gill v. Whitford, the newcomer, Neil Gorsuch, didn't behave with sufficient respect for seniority.
The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries....
So Gorsuch slapped first.  
...of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.
The Gorsuch usage of the word "Constitution" to mean, specifically, the original text harks back to the distinction between "Constitution" and "constitutional law" famously propounded by Reagan's Attorney General Edwin Meese in 1985. Gorsuch was arch and got off a bon mot — "Maybe we can just for a second talk about the arcane matter of the Constitution" — and I'm sure that was irritating to the Justices who want to rest on constitutional law — that is, the court opinions that have over many years supervened the constitutional text with the gloss on the text written by the judges.

Toobin says that "Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution," but all that means is that he proceeded to demand that the lawyer pushing the Court to strike down the work of the state legislature identify the clause of the Constitution that authorizes the Court to act:
“And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?
Toobin calls that a "civics lecture"? I think what he means is that the demand for a text is so basic that to talk about it is to sound as though we are back in high school, and that's either an insult to the old folks on the Court who should be presumed to already know such things or it's an implicit criticism of them for failing to live up to the standards that of course Gorsuch knows they know.

Here's the transcript of the oral argument, where you can see that Gorsuch followed the "civics lecture" with one more question: "Aren't those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?" Gorsuch was suggesting that the particularity of the constitutional text about voting rights with respect to race, sex, and age — in the Fifteenth, and Nineteenth, and Twenty-sixth Amendments — means that a more particular text is needed to find a right to be free from political gerrymandering. 

Whether that deserves to be called a "civics lecture" or not, it did rouse Ruth Bader Ginsburg. Here's how Toobin, who obviously reveres Ginsburg, described the 84-year-old Justice:
Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. 
I'm sure the "dismissal" was "convincing" to Toobin, who must have hated what Gorsuch said and loved that the "sleepy," "droopy" jurist lumbered to life.
In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)
Might have been... seemed to... Are we in fantasy land? I wasn't there but either an audible woo echoed or it didn't. And Gorsuch wasn't silenced: He was the next Justice to ask a question. But speaking of feeling as though you're back in high school, Toobin sounds like a schoolboy muttering "oh, burn."

And yet, Ginsburg, like Gorsuch, only asked a question. It's a question that resonates with the old Edwin Meese distinction: She doesn't need to go back to the constitutional text because she's already moved on to constitutional law. "One person, one vote" isn't in the Constitution. It's judge-written text from old cases, so if Gorsuch wants to know the connection to the text, he can just consult the old cases and stop wasting the adults' time:
In one cutting remark, Ginsburg summed up how Gorsuch’s patronizing lecture omitted some of the Court’s most important precedents, and Smith gratefully followed up on it: “That’s what Reynolds v. Sims and Baker v. Carr did, and a number of other cases that have followed along since.” In these cases from the early nineteen-sixties, the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections.

In short, Ginsburg was saying to Gorsuch that he and his allies might control the future of the Supreme Court, but she wasn’t going to let them rewrite the history of it—at least not without a fight.
Toobin is so dismissive of the idea of going back to the constitutional text that he didn't even bother to check to see if Reynolds v. Sims and Baker v. Carr were based on "the First and Fourteenth Amendments." But neither of those cases even mentions the First Amendment.* Those cases are based on the Equal Protection Clause of the Fourteenth Amendment. Period.

And how is Gorsuch threatening to "rewrite the history" of the Court by wanting to examine old precedents? Old precedents, even when overruled, are still there in the books and part of the history. And this isn't even a case about overruling anything. It's the question whether to extend the rights that originated in the 1960s with Baker v. Carr and Reynolds v. Sims. The effort to move beyond the Reynolds v. Sims idea of "one person, one vote" and onto the problem of political gerrymandering reached the Supreme Court only in the 1980s (back when Meese was giving his famous speech). Gorsuch might think the 1960s cases were not well-grounded in the Constitution and merely want to use that a reason to refuse to recognize any additional legal rights. That kind of judicial minimalism is all that would be needed in this case.

__________________________

* In 2004, in a dissenting opinion in Vieth v. Jubelirer, Justice Stevens injected the First Amendment into the discussion of political gerrymandering. In the plurality opinion, Justice Scalia wrote:
Justice Stevens relies on First Amendment cases to suggest that politically discriminatory gerrymanders are subject to strict scrutiny under the Equal Protection Clause. It is elementary that scrutiny levels are claim specific. An action that triggers a heightened level of scrutiny for one claim may receive a very different level of scrutiny for a different claim because the underlying rights, and consequently constitutional harms, are not comparable. To say that suppression of political speech (a claimed First Amendment violation) triggers strict scrutiny is not to say that failure to give political groups equal representation (a claimed equal protection violation) triggers strict scrutiny. Only an equal protection claim is before us in the present case–perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting, just as it renders unlawful all consideration of political affiliation in hiring for non-policy-level government jobs. What cases such as Elrod v. Burns, 427 U.S. 347 (1976), require is not merely that Republicans be given a decent share of the jobs in a Democratic administration, but that political affiliation be disregarded.
The 5th vote in Vieth came from Justice Kennedy, who said, importantly:
Though in the briefs and at argument the appellants relied on the Equal Protection Clause as the source of their substantive right and as the basis for relief, I note that the complaint in this case also alleged a violation of First Amendment rights. The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion). Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. See id., at 362. “Representative democracy in any populous unit of government is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U.S. 567, 574 (2000). As these precedents show, First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.

The plurality suggests there is no place for the First Amendment in this area. The implication is that under the First Amendment any and all consideration of political interests in an apportionment would be invalid. Ibid. (“Only an equal protection claim is before us in the present case–perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting”). That misrepresents the First Amendment analysis. The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group’s representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Of course, all this depends first on courts’ having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party’s voters.

Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. The equal protection analysis puts its emphasis on the permissibility of an enactment’s classifications. This works where race is involved since classifying by race is almost never permissible. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association. The analysis allows a pragmatic or functional assessment that accords some latitude to the States. See Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989); Anderson v. Celebrezze, 460 U.S. 780 (1983)
I'm reading that carefully and thinking about how difficult it will be for Justice Gorsuch to influence Justice Kennedy. I predict that if the redistricting plan is upheld in this case, there will be a plurality opinion, with Kennedy concurring.

97 comments:

Nurse Rooke said...

The development and specificity of your helpful comment is the main reason why I read your blog.

Alan Gunn said...

Some years ago (early 1980s, perhaps) a law school casebook on constitutional law which did not include the text of the constitution was published. One of its authors told me it was a mistake, which I don't doubt, but the mistake did seem to me to be instructive.

exhelodrvr1 said...

Interesting (telling?) that he doesn't comment on how the other justices reacted.

Ann Althouse said...

@Alan Gunn

That is telling.

And yet, in actual use, the text of the Constitution in the front or back of casebook is unnecessarily adding heft to what is already a too-big book. Leafing back to another part of the book is too unwieldy. Anyone who wants to connect consistently to the text should have a separate booklet with the text of the Constitution. These are handed out all the time at law schools. I liked having the Constitution in that form while teaching, both to read from and to wave around as a prop. I would tell students the Constitution was in the front of the book but they should really have a separate text like mine.

I think the Federalist Society has its own branded booklets and hands them out free. It's like Gideon's Bible. A separate booklet has that sacred-text feeling to it that works in favor of the textualist argument. So ironically, the accidental omission of the text could hurt the anti-textualist's agenda.

Tank said...

that is, the court opinions that have over many years supervened the constitutional text with the gloss on the text written by the judges.

LOL, a nice law professory kind of way to say they made up a bunch of stuff that wasn't ever in the Constitution.

MayBee said...

Ruth Bader Ginsberg needs to hook up with (retired) Judge Posner so they can be cranky together.

Jersey Fled said...

Two judges arguing with each other. I thought that's what they were supposed to do.

The Vault Dweller said...

As someone who is worried that the court has gotten caught up in many areas with an ongoing game of Judicial telephone which has altered or transformed the meanings of the text of the constitution, I am happy that Gorsich is taking the position he is. Political Gerrymandering has always existed in this country. It would seem odd that the 14th amendment would specifically prohibit it, without specifically mentioning it. It is even more odd given what was going to be done to political institutions of the South immediately following the civil war during reconstruction.

This isn't to say political gerrymandering is a good thing. Just that it is hard to thing to fight against. All that ends up happening is you shift the ability to gerrymander to another group or institution. Ultimately the only way gerrymandering can be beaten is if the people themselves demand so from their political leaders.

Ralph L said...

You've created a "ginsbu" tag.
Sounds sexist to me, like bimbo, which is what I think of when I see Ruth Bader.

Paco Wové said...

"You've created a "ginsbu" tag."

If you were a knife, what manner of knife would you be?

Ralph L said...

How can political gerrymandering possibly be avoided?
They fought over state boundaries, even the Senate is political.
A few years ago, they moved some houses near a friend's from one county to another.
If you hand it to a "non-partisan" people, who chooses them?

TerriW said...

"Anyone who wants to connect consistently to the text should have a separate booklet with the text of the Constitution."

Students always complain that they have to buy a separate Grammar text for Henle Latin, but it's for a similar reason -- you'll need to use it every year, regardless of level, and you're probably going to want them both open at the same time, side by side.

(I never saw anyone wave around a Latin grammar text to make a rhetorical point, but that'd be fun .)

Todd said...

that's either an insult to the old folks on the Court who should be presumed to already know such things or it's an implicit criticism of them for failing to live up to the standards that of course Gorsuch knows they know

I would go with "B". Of course those that the "slap" was aimed at "know" the Constitution is a living document and as such they are free to find whatever rights nuggets that they need, whenever they need them. All due to the magic of FEELZ!

Bob Ellison said...

“Maybe we can just for a second talk about the arcane matter of the Constitution.”

There is too much respect for authority and old age in this society. Old, credentialed people can be dumber than children. They seem to grow more stupid with age. I think I am.

Ignorance is Bliss said...

supervened the constitutional text with the gloss on the text written by the judges.

If I were Laslo I would make a comment about the judges glazing the constitutional text like a cinnamon roll. But...

I am not Laslo

rehajm said...

It's sounds like the left's settled science bludgeon. If Gorsuch were a leftie he would be speaking truth to power.

Bob Ellison said...

This seems like a teensy bit of Althouse Unleashed.

Larvell said...

Is there anything more tiring than the left's constant "Ooh, Colbert/Noah/Maddow/Ginsburg totally PWNED that conservative!" self-pleasure?

Jason said...

AND THEN THE WHOLE BUS STOOD UP AND CLAPPED

Clyde said...

Toobin's not just a tool, he's a whole tool-bin.

MaxedOutMama said...

Well - if Toobin would write about the SC the same way you are writing here, he would look a lot more adult and he would be much more interesting. The needless "clickbait" controversy here is rather boring, not well grounded, and ultimately a waste of column space.

The stereotype of bloggers/social media vs the "press" is hereby confounded.

Hagar said...

Would the Democrats' (and perhaps not only Democrats') current theory/conviction that people should vote according to their demographic group enter into this?

How would the courts tell if gerrymandering was done in order to "provide a voice" for some group because of their skin color or whatever, which seems to be not only permissible, but mandatory, and not because of their voting pattern?

SDaly said...

You say that Constitutional Law is a gloss on the Constitution, I say the Constitution is the pentimento over which the radically different Constitutional Law was smeared.

Bay Area Guy said...

Gorsuch 234, Toobin 0

Fernandinande said...

Lawyers talking about voting districts sounds exciting if you add the word "slap". No it doesn't.

Lloyd W. Robertson said...

The 2016 Presidential election showed the possibility of Democrats winning big, populous states, hence winning the popular vote, but losing a lot of less populous states, hence losing the Electoral College. Hypothetically, could the Electoral College be struck down if it was shown that it tends to discriminate against the views of urban, coastal people (and people associated with universities)?

Senate elections and (largely as a result) presidential elections are run in a way that is directly contrary to one person one vote. There is nothing stopping states from allowing or encouraging many people to vote. It is no doubt wrong to actively discourage people from voting. But there is no guarantee that anyone's vote will "count" in a meaningful way.

traditionalguy said...

I get it Gorsusch moving into the Bodega Bay Bar/Court is like Tippie Hedren seeing local customs in Birds. And Scalia's mysterious death keeps Hitchcock's mood going. And she has to slap the old crazy woman that blames it all on the beautiful newcomer.

bgates said...

Gorsuch wasn't silenced: He was the next Justice to ask a question.

Nevertheless, he persisted.

Dickin'Bimbos@Home said...

Anyone who schools a leftwing totalitarian know-it-all is cool by me.

Gahrie said...

Supervene:occur later than a specified or implied event or action, typically in such a way as to change the situation:

What gave the Justices the right or power to change the Constitution? Not even Marshall's fraudulently obtained power of judicial review allows the justices to change the meaning of the Constitution. The role of the Supreme Court is to interpret the Constitution.

How is "rest(ing) on constitutional law — that is, the court opinions that have over many years supervened the constitutional text " not absurdly illegitimate on its face?

Gahrie said...

It would seem odd that the 14th amendment would specifically prohibit it, without specifically mentioning it.

Yes, you would think so wouldn't you? However the 14th Amendment does many many things without mentioning them already......

Left Bank of the Charles said...

In what clause are the levels of scrutiny on which Scalia relies found? Althouse comes to a less colorful conclusion than Toobin, but it is the same underlying point, Ginsbug's slap is likely to be more persuasive to Kennedy than the Gorsuch jab.

Henry said...

The Roman haruspice studied the entrails of animals to make vatic pronouncements. Now we have Mr. Toobin studying the SCOTUS.

Henry said...

Anyone who wants to connect consistently to the text should have a separate booklet with the text of the Constitution.

And should wear it on their person.

JAORE said...

For presidential elections, individual states could approach one man one vote by electors spread about proportionally to the voting totals by party. Some states do, some states don't.

Frankly I don't know if, for example, California is a winner take all state?

Wilbur said...

Having read Toobin's book on the Supreme Court, I can indeed confirm he is a partisan hack par excellence.

Hagar said...

Contemporary voting blocs are defined by the pollsters. I don't find them in the Constitution either.

Martha said...

I hope Toobin reads Althouse.
Better still, Althouse should replace Toobin at the New Yorker and Greenhouse at the New York Times.
Their readers would benefit bigly from her Wisconsin professorial analysis.

DHunter said...

For years the Democrats did what they wanted with the boundaries of congressional districts because they were in charge. They did neither a better nor a worse job of it, they just favored their party. Now that the Republicans are in charge in so many states due primarily to the poor performance and ideological leftism of their president they lost a lot of statehouses and governorships and they can't stand the fact that their work is being undone to put them at a political disadvantage. So they do what all Democrats do, they sue in federal court to obtain what they cannot at the ballot box.

Sebastian said...

""Maybe we can just for a second talk about the arcane matter of the Constitution" — and I'm sure that was irritating to the Justices who want to rest on constitutional law — that is, the court opinions that have over many years supervened the constitutional text with the gloss on the text written by the judge." No time to read the whole post. Althouse working too hard in retirement. But: imagine that, paying attention to the actual dead, dead text, rather than stuff some people made up at some point. Shocking.

Original Mike said...

Blogger Wilbur said..."Having read Toobin's book on the Supreme Court,..."

Voluntarily?

Matthew Sablan said...

"Ultimately the only way gerrymandering can be beaten is if the people themselves demand so from their political leaders."

-- Or create political systems that disempower gerrymandered districts. Let people gerrymander as much as they want, so long as a co-equal check and balance exists to hold it in check. You know, like a bi-cameral legislative block or a strong judiciary.

Matthew Sablan said...

"Hypothetically, could the Electoral College be struck down if it was shown that it tends to discriminate against the views of urban, coastal people (and people associated with universities)?"

-- No, as the presidency isn't a popularity contest, it is, rather, a compromise between the populous states and the not-so-populous states to pick an executive that is amenable to a broad enough political spectrum of the country.

Urban, coastal people have significant power in the House and in their local state governments to balance out that people in fly over country have say anywhere else.

Matthew Sablan said...

"Senate elections and (largely as a result) presidential elections are run in a way that is directly contrary to one person one vote."

-- Why do you say that? Or, are you of the opinion, only the casting vote matters in any electoral contest, and every vote over that winning vote and below it are just "wasted" votes?

Eleanor said...

Ruthie is kicking herself for getting hoodwinked into believing Hillary was a shoo-in. Expect her to take it out on everyone, but especially Gorsuch. Something tells me he can take it. Might even enjoy it.

robother said...

Ask Clarence Thomas about how being deferential at SCOTUS oral arguments worked out. If you're not clubbable, there is no course of behavior you can adopt that will not prove your unclubabbility.

FleetUSA said...

Thank you Professor. This analysis is one of the main reasons I read your blog and shop at Amazon via your blog.

Mattman26 said...

About a million years ago, when Harold Washington was elected mayor of Chicago after a vicious and racially charged campaign, one of the news stations was doing a woman-on-the-street interview, and the woman explained that she was glad it was over because the whole thing was "so political."

The desire to "get the politics out of politics" is understandable, but ultimately futile and potentially dangerous.

Unknown said...

Wonder if AA has ever considered writing a syndicated column? I expect it would do well.

Caligula said...


"The Senate of the United States shall be composed of two Senators from each State." Article I, section 3, clause 1.

At least that's how it used to be, before SCOTUS discovered that this violates the 14th Amendment, and thus abrogates it.

And the formula for determining representation in the House, although it does not violate the 14th as egregiously as this, is obviously faulty as well.

And the electoral college ...

"One person, one vote" obviously requires a re-write of much of the original U.S. Constitution.



Todd said...

Matthew Sablan said...
"Hypothetically, could the Electoral College be struck down if it was shown that it tends to discriminate against the views of urban, coastal people (and people associated with universities)?"

-- No, as the presidency isn't a popularity contest, it is, rather, a compromise between the populous states and the not-so-populous states to pick an executive that is amenable to a broad enough political spectrum of the country.

Urban, coastal people have significant power in the House and in their local state governments to balance out that people in fly over country have say anywhere else.

10/4/17, 9:01 AM


And though liberals will never admit it, if the roll of the President and of the Federal Government were as it was originally intended (small) who actually sits behind the Resolute desk would be MUCH less important, as it should be.

The most important politician in your life should be your Governor or Mayor, NOT the President.

Amadeus 48 said...

Jeffrey Toobin is a lounge singer crooning to the denizens of that upscale, somewhat tired boite called The New Yorker. You can see RBG there most nights (they have a caricature by Al Hirschfeld hanging on the wall), usually knocking back absinthe with her pals Breyer, Kagan, and the mujer sabia Sotomayor. Kennedy drops by for a pop every now and then.
The world has passed The New Yorker by, but the denizens still love the old songs, and Toobin loves to sing them. So drift on, old friends, in your semi-stupor. Trump, Gorsuch, DeVos...they'll never get a table in here!

AJ Lynch said...

What Orig Mike said at 8:55AM!

Saint Croix said...

Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document.

But she was buddy-buddy with Nino! Why hate on the younger colleague? Unless you think he's uppity, because he's so young.

Amadeus 48 said...

If Kennedy wants to kill the authority of the Supreme Court, he should push the Court into the political thicket of redistricting, as Althouse pointed out yesterday in one of her greatest posts.
California and Illinois are monuments to the effects of partisan redistricting by Democrats, and the GOP has finally turned the tables in many states, thanks to the 2010 election results. The Dems held on the House of Representatives for 40 years thanks to gerrymandering, but now that the GOP is in the driver's seat, the usual suspects have discovered another political question where they want the court to intervene in the name of human rights. I am a great believer in natural law, but I don't think that Nature and Nature's God intended that the Democrats win every fight, even when they can't win elections.

Saint Croix said...

Hypothetically, could the Electoral College be struck down

Struck down by what, the super-duper Constitution?

Saint Croix said...

I wish some of these "one person, one vote" people would do the math on how many votes a Supreme Court Justice has.

One Justice, 35 million votes!

Let that be your bumper sticker.

Bill said...

My favorite movie slap: Joan Crawford in Queen Bee.

Saint Croix said...

Also, for those who believe in stare decisis…

It's "one man, one vote."

Babies are people.

But they can't vote.

Amadeus 48 said...

I don't know why Toobin didn't go into full Twitter mode and shout, "Ginsburg OWNED Gorsuch in today's Supreme Court session!!!" Too racist, maybe, with references to one human being owning another. It might trigger Ta Nihisi Coates.

Roy Lofquist said...

I see Emanations and Penumbras of Judicial Infallibility in the citation of Constitutional Law.

Roger Sweeny said...

The difference between the Constitution and constitutional law is way older than Ed Meese. When I went to law school about the time you did, all the professors told us that ideological right-wing judges had invented lots of bad constitutional law pre-1937, law which went against the actual Constitution.

gregq said...

"In short, Ginsburg was saying to Gorsuch that he and his allies might control the future of the Supreme Court, but she wasn’t going to let them rewrite the history of it—at least not without a fight."

"Rewrite the history of it"? You mean, like dumping Bowers v Hardwick for Lawrence v Texas?

It's amazing how Leftists lose and discover their love of precedent.

n.n said...

Babies are people.

But they can't vote.


Babies should have no voice to protest nor arms to defend their lives.

Babies are clearly a democratically unviable constituency. They don't even have a minority leader to represent their interests. When was the last time a baby classified feminists or defending interests like the SPLC as hate groups? Neo-Nazis, really.

That said, constitutional law seems to be written at the twilight fringe, where the secular gods of wealth, pleasure, leisure, and democratic leverage play their games.

Christy said...

Gerrymandering takes on an interesting aspect when I think about SCOTUS last year insisting that non-citizen immigrants be included in the population counts used for setting up districts. Where would you put large immigrant communities? And couldn't you manipulate like crazy?

"One man, one vote" was used frequently last year. I figured it was code, but remain clueless as to the secret meaning.

rcocean said...

First, the SCOTUS can do anything it wants. Go find abortion or Gay marriage in the Constitution. If Hillary had been elected, we wouldn't be having this conversation about gerrymandering. We'd be talking about how far Left the SCOTUS was going to go.

Second, I don't think the SCOTUS would ever be bold enough to strike down the EC. What it would do is strike down the "Winner take all" system of voting and elimination of the 2 EC votes bonus per state. So, we'd have a system of 438 EVotes and not 538. AND the smaller red states would have their power drastically reduced. For example, Alaska and the 4 plains states instead of having 20 Electoral votes would get 10 under the new system. All this would result in an excellent correlation between the popular vote and the EC - and hand the POTUS to the Democrats.

Mattman26 said...

Re the constitutionality of the electoral college: It'd be pretty darned hard, even for a hard-core activist, to find part of the constitution unconstitutional.

Conceivably they could find that some aspect of the constitution was superseded by a subsequent amendment, but again, I don't think even the most activist judge could keep a straight face and say that the EC had been effectively overridden.

CStanley said...


"One man, one vote" was used frequently last year. I figured it was code, but remain clueless as to the secret meaning.

The secret meaning is: Democrats are losing the EC vote.

Jeff H said...

Some person of unspecified specificity: "...the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections".

Why am I thinking of "circle j*rk reasoning? Judges deciding what judges can do.

#sovietjusticesystem

The Godfather said...

Leaving aside the question whether the Constitution mandates "One Man [Person], One Vote", at least it's a reasonably coherent test to apply: Count up the number of people in each district and see if the districts are all about the same size.

But how do you determine whether equal-sized districts are gerrymandered in favor of one party? What I've heard proposed is to count up "wasted" votes, that is votes cast for Party A in excess of the number needed to win the election. If the "wasted" votes exceed some arbitrary standard (X% of the total), then there's improper gerrymandering. What is the principled rationale for such a standard? How can you say my vote was "wasted" if I voted for the winning candidate? I'm happy with the outcome in my district. It's the minority party in my district whose voters are unhappy because their votes failed to elect the candidate they favored; their votes are the ones that were really "wasted". And how do you determined what X% should be in the formula? Where does that come from?

And how should the legislature apply the "wasted" vote standard in drawing district lines? The number and distribution of votes cast differ from election to election; which election must the legislature use? The most recent election? The most recent election in a Presidential election year when turn-out is typically highest?. All the elections during the preceding decade? And when a court considers a challenge to a districting plan can it consider different elections than those the legislature considered, for example elections held after the legislature drew the district map? If so, then demographic or political changes after the decennial redistricting could invalidate a district map that was valid when adopted. Does the Constitution require that?

I think Kennedy is savvy enough to know that there's simply no practical way to apply such a standard.

Mattman26 said...

Godfather, I sure hope Kennedy is "savvy enough to know that," as opposed to "hungry to cap off his legacy."

You're right that it's totally unworkable, so every time Kennedy says he'd like to analyze it in First Amendment terms so long as workable rules can be devised, he's at least implicitly recognizing that it's hard to imagine how it could be done.

But I'm afraid that in what's widely rumored to be his last term on the Court, he'll join up with the libs and make a decision that will immerse the judiciary in what can only be unprincipled and unworkable ad hoc decision-making for decades to come.

submandave said...

IANACL, but to this layman is seems there is a distinct and significance difference between SCOTUS telling a State it must fairly apply voting law to all its citizens and hold free and fair elections, and SCOTUS telling a State whom its citizens may vote for.

Unknown said...

now i know why thomas does not ask any questions, because he will be called an arrogant SOB for asking a textual question not in keeping with the club. lose-lose for him and we would rather not have a bunch libs attacking him in new york media for being out of place--because he is a black, conservative...

Gahrie said...

It'd be pretty darned hard, even for a hard-core activist, to find part of the constitution unconstitutional.

Not really. That is exactly what happened here in California. The people of California amended the state constitution to ban gay marriage, and the California Supreme Court ruled the amendment is constitutional.

cubanbob said...

Voting should be left only to citizens in full possession of their civil rights and who are net taxpayers. That would disenfranchise most of the Democrat voting blocks.

We have one man, one vote for those who are legally qualified to vote. What the Democrats want is block voting. Congress can and should exert it's authority in this area where the constitution clearly gives it authority and overrule the court where it has overstepped its authority. Everyone who can legally vote can do so, thy just don't have the right to expect their desires to be the outcome.

Gahrie said...

I don't think even the most activist judge could keep a straight face and say that the EC had been effectively overridden.

Sure they could, they could just wave their magic wand and mutter the spell "Fourteenth Amendment" and poof, the Electoral College is gone...

Gahrie said...

elimination of the 2 EC votes bonus per state. So, we'd have a system of 438 EVotes and not 538.

Those votes aren't a bonus..they represent the state's senators...1 EC vote for each Senator and Representative.

Article II Section 2:

Each State shall appoint, in such a manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:...

Brent said...

In these cases from the early nineteen-sixties, the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections.

GLORIOUS DAY!! THIS MEANS
JEFFREY TOOBIN HAS CHANGED HIS VIEW IN BUSH V GORE!

zefal said...

I just wanted to throw out that I remember ruth ginsberg said during her nomination hearings that the fourteenth amendment only applied to blacks. She was literally red-faced because she was knowingly lying.

Sigivald said...

I certainly don't want to hear Justices tell me about the Constitution without being able to point to the text supporting their claims.

(I will cheerfully, gladly accept 10th Amendment claims of non-enumerated rights, mind you; those can be debated, but they're expressly allowed, so much so that the Framers worried about the danger of enumerated rights becoming the only ones.

Not every claim to a 10th Amendment right can be correct, of necessity, but equally there is I think universal agreement that the number is not zero.

I want something a lot deeper than that for a claim to Federal power; either an enumerated power or a serious argument for how a power is necessary and proper for the exercise of one.)

Colorado Dude said...

After the 1980 Census, Colorado’s Republicans controlled redistricting under our Reapportionment Commission format. We followed the law, gained a two-thirds majority in the State House, and respected minority community interests ... leading quickly to a Hispanic Democratic leader in the House.
Democrats controlled subsequent Commissions, thanks to Democratic Chief Justice appointments. They ran roughshod over obvious “communities of interest” while creating a district for lodge pole pine beetles! They regularly “won” many more seats than their share of all State House or State Senate votes statewide.
I hope the Supreme Court justices aren’t persuaded that reapportionment won’t still be a hardball game ... because it will.
Whatever con law may suggest or supposedly require, gerrymandering will still continue.

Skipper said...

How dare a mere mortal question the Gods.

Original Mike said...

"I don't think even the most activist judge could keep a straight face and say that the EC had been effectively overridden."

Sadly, I don't think they'd have any problem at all.

Mark said...

Well, the "living Constitution" crowd should be thankful for anything that keeps Ginsburg awake.

Gospace said...

JAORE said...
For presidential elections, individual states could approach one man one vote by electors spread about proportionally to the voting totals by party. Some states do, some states don't.

Frankly I don't know if, for example, California is a winner take all state?


No state does that. Two states award electors with 1 elector per won congressional district, and the remaining 2 to the overall popular vote winner. The rest are winner take all.

HoodlumDoodlum said...

. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest.

. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.

Oh, duh! You can tell I didn't go to law school--it took me this long to figure out how the Court could plausibly find the way that want to on this one. It's obvious one you read that from Kennedy, though.

All the Court has to do is find the state action in the instant case unconstitutional on 1st Amend. grounds but THEN allow that a certain non-specific amount of gerrymandering is Constitutional so long as it meets the test they invent now. The test will say that all gerrymandering (of a certain degree) infringes on 1st Amend rights but that it is Constitutionally permissible to do so--passing strict scrutiny--when the gerrymandering serves the purpose of assisting members of this or that protected class. That degree of gov. thumb-on-the-scale w/r/t redistricting would be impermissible for any other reason, but giving greater influence to a minority protected class is reason enough to allow for the otherwise impermissible infringement on everyone else's rights.

That'll solve the Left's problem, won't it? Their gerrymandering, understand, is only done for the noble cause of ensuring that Court-acknowledged protected classes have adequate representation, etc. The fact that many of those classes are distinct numerical minorities is in that case a bonus--how much more necessary it becomes to gerrymander to maximize their political influence!

That give the Court maximal power to make the determinations when necessary (they can decide both whether the degree of gerrymandering merits examination and whether the intent or motive of any gerrymandering they do examine is Constitutionally valid) but also clears the way for lower courts to use an easy test when the "wrong" people are behind a given redistricting! People on the wrong political side will be preemptively assumed to have bad motives, naturally.

I feel dumb for not seeing that sooner--I guess it's pretty obvious. As an analogue for affirmative action (on the back end, evaluating the purpose of the otherwise-unconstitutional action) it's pretty tidy.

Gospace said...

Another pertinent fact concerning the electoral college often overlooked is that the number of congresscritters set at 435 is unconstitutionally low. Amendment 14 Section 2: Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed.


NY/WY=34. NY has 27 congresscritters, 7 too few. Violates the actual words of the Constitution as well as the emanation and penumbra one man one vote decision that said the people who set up state legislatures the same way as federal legislatures, who were often the same people, were fools who didn't know they were violating the Constitution they wrote by doing so.

HoodlumDoodlum said...

Sigivald said...I certainly don't want to hear Justices tell me about the Constitution without being able to point to the text supporting their claims.

Between "necessary and proper" and "equal protection of the laws" what more do you need? If you're really fussy we'll reference "due process" --that's in there twice!
Honestly, with a reliance on substantive due process what can't the Court do?

Anyway you text-worshippers are all wet; Marbury isn't in there. You don't expect us to turn the clock back to those dark times, do you? Why--they had slavery then! What's your real objective here?!

Steven said...

Elbridge Gerry was a signer of the Declaration of Independence, a signer of the Articles of Confederation, a member of the Constitutional Convention who refused to sign due to the lack of a bill of rights, and congressman influential in passing the Bill of Rights.

For someone to declare that gerrymanders violate the same Bill of Rights that Gerry advocated would take a lot of arrogance.

greyniffler said...

Isn't some gerrymandering REQUIRED by civil rights law? And were the districts in this case drawn according to that law?

(For some reason, Google is putting an old Potterfan ID on this. Sorry.)

Jeff said...

It'd be pretty darned hard, even for a hard-core activist, to find part of the constitution unconstitutional.

The death penalty.

Zach said...

In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?”

Is this obviously a put-down? It seems to me that she's responding to Gorsuch's question with a relevant point -- that she sees the gerrymandering issue as an extension of the "one man, one vote" principle, so that it would be rooted in the same part of the Constitution.

Zach said...

Also, it's not clear to me that Gorsuch's remark was a slap at the other Justices. It's a preamble to his question to the attorney, which is what part of the Constitution he thinks supports his argument.

That's a question the attorney should be ready to answer!

It's a softball question that will lead in to the part Gorsuch really wants to talk about.

Zach said...

My own opinion is that you'll have a lot of trouble making a gerrymandering argument from the text of the Constitution, because the Constitution gives no special meaning to the concept of a political party. Originally the Vice President was supposed to be the runner up in the Presidential election!

From the Constitution's perspective, every election is unique unto itself, and unconnected with any other elections that might be going on at the same time. The idea of a "wasted vote" only really makes sense if people are voting for parties rather than candidates -- which is a good sociological explanation, but has no real legal meaning in this context. It's impossible to vote for the Republicans or the Democrats in America -- you can only vote for a candidate endorsed by the Republicans, or a candidate endorsed by the Democrats.

Lem said...

You would think an associate justice leaking/gossiping to/with reporters about what goes on in the court was disrespectful of said court.

black kettle in a hat... or something

JAORE said...

RBG has made statements that fall well outside of the traditions of the court. Openly political statements. In fact she has had to apologize for some of these.

I won't bother to look it up because I'm sure, just sure, Toobin was outraged by this break in tradition. I'm equally sure he wrote this was an indication that RBG's mind was slipping and it was well past time for her to retire.

West said...

exhelodrvr1 said...
Interesting (telling?) that he doesn't comment on how the other justices reacted.

10/4/17, 7:06 AM

They were all "Wooh"-ing. And doing The Wave, in Toobin's imagination.