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.