June 27, 2019

Huge decision on political gerrymandering: "We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."

That's Chief Justice Roberts, writing for the 5-4 majority. You can find the news articles yourself, I will read the opinion and update.

ADDED: The case is Rucho v. Common Cause.
The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere....

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing....
But in Baker v. Carr, the Court rejected the idea that redistricting was entirely left to the legislature. It detailed the "political question" doctrine, identifying 6 factors, one of which is "a lack of judicially discoverable and manageable standards," and decided that, in the context of districts with unequal numbers of residents, the Equal Protection Clause was a source of standards. Later, it said the standard was "one person, one vote" — that is, a requirement roughly equal numbers in each district.

There's still a lot of advantage to be taken in where you draw the lines, but it's harder for judges to discover a standard and manage it. When the lines were drawn for racial reasons, the Court got involved, but lines drawn for partisan reasons were always troublesome. There have been a few cases (described in the opinion), but the Court was always fractured over what the standards should be, and a minority of Justices maintained that partisan gerrymandering fell within the political question doctrine. After more than 3 decades, that minority view has become the majority. It was Justice Kennedy — concurring in Vieth (2004) — who kept partisan gerrymandering from going into the "political question" category 15 years ago. So Kavanaugh replacing Kennedy made the big difference.

Roberts writes, showing some deference to Anthony Kennedy but much more respect to Justice O'Connor (who wrote an excellent concurring opinion in the key case Davis v. Bandemer (1986)):
In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” 541 U. S., at 306–308 (opinion concurring in judgment). An important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.). See Gaffney, 412 U. S., at 749 (observing that districting implicates “fundamental ‘choices about the nature of representation’” (quoting Burns v. Richardson, 384 U. S. 73, 92 (1966)))....

Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system—“statewide elections for representatives along party lines.” Bandemer, 478 U. S., at 159 (opinion of O’Connor, J.).

Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Ibid. “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id., at 130 (plurality opinion)....
Roberts quotes what Justice Scalia wrote for the plurality in Vieth:
“‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291.
Roberts continues:
The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party....

On the other hand, perhaps the ultimate objective of a “fairer” share of seats in the congressional delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its “appropriate” share of “safe” seats. See id., at 130–131 (“To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit.”); Gaffney, 412 U. S., at 735–738. Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party.

Or perhaps fairness should be measured by adherence to “traditional” districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents. See Brief for Bipartisan Group of Current and Former Members of the House of Representatives as Amici Curiae; Brief for Professor Wesley Pegden et al. as Amici Curiae in No. 18–422. But protecting incumbents, for example, enshrines a particular partisan distribution. And the “natural political geography” of a State—such as the fact that urban electoral districts are often dominated by one political party—can itself lead to inherently packed districts....
The high concentration of Democrats in cities means that they get a lot more votes than they need in those districts, but not (in this view) because the legislators were unfair.

There are multiple "visions of fairness" and to pick one, Roberts says, is to make a political decision. There's no legal basis for choosing — "no legal standards discernible in the Constitution... let alone limited and precise standards that are clear, manageable, and politically neutral." And that's what puts it in the "political question" doctrine.

Even if the Court were to pick a "vision of fairness," there would still be a terrible problem applying it in particular cases, Roberts says:
At what point does permissible partisanship become unconstitutional? If compliance with traditional districting criteria is the fairness touchstone, for example, how much deviation from those criteria is constitutionally acceptable and how should mapdrawers prioritize competing criteria? Should a court “reverse gerrymander” other parts of a State to counteract “natural” gerrymandering caused, for example, by the urban concentration of one party? If a districting plan protected half of the incumbents but redistricted the rest into head to head races, would that be constitutional? A court would have to rank the relative importance of those traditional criteria and weigh how much deviation from each to allow.

If a court instead focused on the respective number of seats in the legislature, it would have to decide the ideal number of seats for each party and determine at what point deviation from that balance went too far. If a 5–3 allocation corresponds most closely to statewide vote totals, is a 6–2 allocation permissible, given that legislatures have the authority to engage in a certain degree of partisan gerrymandering? Which seats should be packed and which cracked? Or if the goal is as many competitive districts as possible, how close does the split need to be for the district to be considered competitive? Presumably not all districts could qualify, so how to choose? Even assuming the court knew which version of fairness to be looking for, there are no discernible and manageable standards for deciding whether there has been a violation. The questions are “unguided and ill suited to the development of judicial standards,” Vieth, 541 U. S., at 296 (plurality opinion), and “results from one gerrymandering case to the next would likely be disparate and inconsistent,” id., at 308 (opinion of Kennedy, J.).
Roberts preserves the one-person, one-vote cases (even as he rejects the argument that if courts can do those, they should be able to deal with the partisan gerrymandering cases). One-person, one-vote is "a matter of math." You just need each vote to carry equal weight, and you don't worry about who is voting for what. Just get equal numbers in each district, and the legislatures can draw the lines anywhere they want?

Well, there's still the problem of racial line-drawing. The majority preserves those cases (even as it rejects the argument that if courts can do those, they should be able to deal with the partisan gerrymandering cases). How? Simply by noting that there's "strict scrutiny" for claims of racial discrimination.
Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.
Roberts observes that for all the Court's involvement in partisan gerrymander cases, it has never stricken anything down as a violation. I taught those cases for many years, and I always asked whether that fact indicates that the Court ought to withdraw from this kind of litigation, and one answer was: We're only seeing what legislatures do when they know there will be judicial review, but if the Court were to the political question doctrine and let legislatures know whatever they did would be the end result, with no judicial supervision, we'd see different districting.

Wouldn't much more advantage be taken? Isn't the judicial review doing something beneficial even if no violations are ever found? They're keeping up the pressure, letting legislatures know they're being watched and they'd better not go so far as to reach the place that a court will call too far. But the Supreme Court majority is more concerned with a court's difficulty making pronouncements about what too far is.

Roberts observes that state courts can still find "[p]rovisions in state statutes and state constitutions" to enforce against partisan gerrymandering. And state legislatures can choose to follow more neutral approaches to redistricting:
For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3.
And Congress could legislate. Roberts discusses several bills that address partisan gerrymandering. I observe that today's Supreme Court decision should light a fire under Congress. It's got to stop relying on the supposed role of the courts now that the Court has clearly announced it has no role at all.

The ending of the Roberts opinion is framed on the Supreme Court's most important quote:
But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch, at 177. In this rare circumstance, that means our duty is to say “this is not law.”
ALSO: The dissenting opinion is written by Justice Kagan (joined by Ginsburg, Breyer, and Sotomayor). Kagan doesn't accept that last sentence quoted above — "this is not law." She begins:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
To say the standards are hard to discern and manage is not to say that there is no legal right. And it's not even that hard:
The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong....

[The 2010] redistricting cycle produced some of the most extreme partisan gerrymanders in this country’s history.... And gerrymanders will only get worse (or depending on your perspective, better) as time goes on—as data becomes ever more fine-grained and data analysis techniques continue to improve. What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, “we the people” become sovereign no longer....

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

74 comments:

Bay Area Guy said...

Good decision, but it's a no-brainer. What a surprise that 4 liberal knuckleheads don't understand separation of powers, and seek to legislate from the bench when their team is losing.

Gerrymandering -- may not be a good idea, but certainly not unconstitutional (too many double negatives there).

henry said...

What does that do to the Wisconsin districts? (I lost track)

Nonapod said...

It's kind of funny how everyone agrees that Gerrymandering is bad up and until it clearly benefits their side.

rhhardin said...

Good. Blame the party that did it but they can do it.

rehajm said...

Its hard to understand the raison detre for a judicial body what sticks their tits in the wind to gauge liberal opinion then finds weasel words to justify it on legal grounds. I suppose as a check for when liberals don’t have supreme legislative power.

Mike Sylwester said...

I thought that the US Constitution requires that the Democratic Party's votes be optimized.

tim maguire said...

It's hard to see how gerrymandering could raise a constitutional question, but I'd like to see a legislated solution that prevents such absurdly manipulated legislative borders. Not that that will ever happen given that the majority always has an interest in preserving gerrymandering.

Lucid-Ideas said...

Here's what's really at stake...

Here's the secret. This is about 'heads', not 'votes'. By doing this, representation becomes proportional, not representative. The counting of 'heads' not 'votes' by law allows states like CA to add even more legislators to the house while states with a shrinking 'head count' like IA get nothing.

This is nothing less than robbery. You - dear 'citizen' - are being robbed. You are now a 'head', just like Juan is a 'head'. You may have a legal vote (now) while Juan doesn't...at least until CA decides to 'harvest' his vote....

Bay Area Guy said...

I'd say more than 50% of the SCOTUS cases should be summarily dismissed under the "political question" doctrine.

Mark said...

Given two opposing rulings, politicized people on both sides are going to be tedious at best at your 4th of July soiree.

I suggest not inviting people from either sides. Twitter and Facebook have partisans all shades running around with their hair on fire.

It's hot outside today. I think I will go swimming instead.

Tommy Duncan said...

If I understood the Wisconsin situation correctly, the Democrats didn't like the election outcomes from the current voting districts and lacked the seats in the Wisconsin State Senate and Assembly to change district maps. Lacking political means, the Democrats sought help from the courts. This ruling seems to send the issue of gerrymandering back to the States as a political issue. I think that's a loss for the Democrats (correct me if I'm wrong).

Lucid-Ideas said...

Taking 'heads' to its logical conclusion...

So if 'heads' are all that matters and not the legal status of the person involved for representative purposes, is Facebook now a country? What about my Twitter and Insta followers? How about the viral followers on yesterday's YouTube video?

I mean - if we're now able to manufacture 'heads/upvotes/likes' at will - let's go all the way. Server farms in Russia and China and Mexico want to know!

There's an army of Guatemalans and Hondurans that have been paid numerous times to hit the roads and snake their way towards the border. All they have to do is step foot on America's magic dirt and they become countable for representative purposes. Grand!

Temujin said...

Mark said:
Given two opposing rulings, politicized people on both sides are going to be tedious at best at your 4th of July soiree.


Too late. I'm going to be in New England over the 4th with a family full of highly irritated and activated lefties. I will be hung out to dry and my wife will insist I take long walks rather than engage the troops.

I see much alcohol this coming holiday.

Douglas said...

One might hope this case will lead to the reconsideration and overruling of Baker v. Carr.

Big Mike said...

The high concentration of Democrats in cities means that they get a lot more votes than they need in those districts, but not (in this view) because the legislators were unfair.

Back when I lived in Montgomery County Maryland, the Democrats drew up districts for the state legislature that were pie-shaped, with the pointy ends poking deep into the incandescent blue inner suburbs and effectively disenfranchising the more Republican outer suburbs. My conclusion is that Democrats are in love with gerrymandering (more correctly, refuse to recognize that it exists) when it benefits them, and only dislike it when it works in favor of Republicans.

Tough.

rehajm said...
This comment has been removed by the author.
Big Mike said...
This comment has been removed by the author.
HoodlumDoodlum said...

When the lines were drawn for racial reasons, the Court got involved,

One way the Court got involved was to *require* some lines to be drawn for racial reasons. I have to chuckle a bit when I hear people on the Left complaining about the evil of racial gerrymandering--in my state we're not allowed to do away with racial gerrymandering and it's racist to suggest we should!

Lucid-Ideas said...

The economist and historian Niall Ferguson has repeatedly emphasized that Western Civilization has triumphed in the contest of ideas due the '5 killer apps of Western Civilization', one of which is tolerance. And he is correct. It is also tolerance that has been hijacked and used as a trojan horse by globalists seeking a demographic and electorate replacement strategy.

Regardless of your position for or against it cannot be doubted that - dubious as the concepts sometimes are - it is necessary at times to 'shame the law'. The law is not a perfect instrument of enforcement for philosophical concepts, and as it has always been historically accepted it is at times necessary for citizens to realize that processes put in place to their benefit have been hijacked.

You're being robbed. The system is being hijacked. The letter of law may be followed while the spirit is gang-raped. That's what's happening here.

HoodlumDoodlum said...

traditionalguy said...The first reaction by the Dems was that political gerrymandering was what cost their candidate Stacy Abrams the Georgia Governor's race. And that is their story.

Yeah, for a statewide office! Pretty funny stuff.

HoodlumDoodlum said...

By the way--it's stupid to assume, as most Media voices seem to, that gerrymandering benefits Republicans. There are plenty of places where gerrymandering strongly benefits Dems: Maryland is apparently a clear example. Gerrymandering helps the group in power at the time the maps are drawn. In GA that was Democrats for several decades until the 1990s. The redistricting then, and in 2001, were loudly denounced as gerrymandering...but the districts weren't appreciably "worse" geographically than they had been before in most cases, just with a slight Republican advantage vs the slight Democrat advantage that had existed.

Gerrymandering may be a problem and I'd be happy to see states address it with whatever version of "fair" and impartial district-drawing they decide is best. It's not something the Court should have the power to do, though, and I'm glad this ruling makes that clear.

mockturtle said...

Note that the NYT said the Court "kicked the can down the road". IMO, any decision that will keep the federal government from grabbing more power and control is a good one.

iowan2 said...

There are several states that have effective formulas to draw districts. Pick one and go with it. Iowa seems good, but Iowa does not have the huge concentration in cities. This is a political problem, so say the politicos. Political solution.

Why is it fine to create safe minority districts? Thats been going on since the seventies

Leland said...

So, how many people complaining here about Roberts, were applauding Bush for picking him in 2004/2005?

I did, what other choice did I have? Vote for Al Gore? I used to complain about Althouse voting for Obama, but as she pointed out, her other option was John McCain. Did you gleefully vote for John McCain? You had more control over that decision than the Roberts appointment.

wendybar said...

Lucid-Ideas said...
Here's what's really at stake...

Here's the secret. This is about 'heads', not 'votes'. By doing this, representation becomes proportional, not representative. The counting of 'heads' not 'votes' by law allows states like CA to add even more legislators to the house while states with a shrinking 'head count' like IA get nothing.

This is nothing less than robbery. You - dear 'citizen' - are being robbed. You are now a 'head', just like Juan is a 'head'. You may have a legal vote (now) while Juan doesn't...at least until CA decides to 'harvest' his vote....

6/27/19, 10:50 AM

Another BINGO!!

Ann Althouse said...

Look, I'm going to put up a post on the citizenship case. Don't discuss it here!

I'm deleting all the off topic comments.

Sorry for those of you who put effort into these comments, but I've said many times you need to respect the topic in the post.

I'm disappointed to have to spend time clearing out the off topic things. Please try to help!

Ignorance is Bliss said...

It is emphatically the province and duty of the judicial department to say what the law is.

Fuck No!

It is emphatically and exclusively the province of the legislative branch to say what the law is. And not only do they say it, they even write it down.

It is the province of the judicial branch to say how that law applies to various cases and controversies.

Stay in your lane, bro.

Carol said...

Yeah it's not the same case!

Getting very confused here.

Francisco D said...

If I understood the Wisconsin situation correctly, the Democrats didn't like the election outcomes from the current voting districts and lacked the seats in the Wisconsin State Senate and Assembly to change district maps. Lacking political means, the Democrats sought help from the courts. This ruling seems to send the issue of gerrymandering back to the States as a political issue. I think that's a loss for the Democrats (correct me if I'm wrong).

We have a clear thinker here!

Murph said...

When an identifiable racial or ethnic minority generally votes overwhelmingly for this or that one of the two major political parties, how does anyone deteremine if it's a political issue (for the state legislature to resolve), or a racial bias/discrimination issue (to be decided at the federal level)?

Hagar said...

Gerrymandering for racial reasons is also bad because it is just about guaranteed to produce corrupt political "machines" that in the long run is going to be as damaging for the supposedly benefited minority as the rest of us, if not more so

Birkel said...

Roberts finally found something beyond his own powers.

Glory be!

Ann Althouse said...

"Fuck No! It is emphatically and exclusively the province of the legislative branch to say what the law is. And not only do they say it, they even write it down. It is the province of the judicial branch to say how that law applies to various cases and controversies. Stay in your lane, bro."

No.

"Say what the law is" means to look at the law, read it, and say what it means. The idea is that the judge's role is to accept the law as it is and do what it requires, without political preferences and without making anything up or ignoring something that's there.

The legislators role is to MAKE the law -- to decide what it SHOULD be and to cause it to come into existence by writing statutes (within their power to legislate which is defined by the law that is the Constitution).

In Marbury, the Court said what a statute meant (that a particular type of case was in the Court's original (as opposed to appellate) jurisdiction) and also said what the Constitution provided about the legislative power to make jurisdiction statutes, found a conflict, and said what you do under the law when a statute is inconsistent with the Constitution.

That's the "saying" of Marbury.

A case I taught at least 100 times.

rcocean said...

We were filling time while you "updated" !

Anyway, thank God for Trump and Goresuch - otherwise, we'd have the Federal courts deciding the district lines for every Congressional seat in the USA.

rcocean said...

The Liberal justices are hard core ideologues. As Roberts wrote, if the partisan Gerrymanding is unfair the victims can go to the state courts, the state legislature or even Congress to get a change.

There is NO REASON for the US Courts to get involved in partisan gerrymandering. The Liberals won't give up. The goal is to use the law to deny the R's the spoils of victory. So, they'll try another Judicial route.

rcocean said...

This is not really a conservative victory. Its just beating back another Liberal Judicial power grab. We've won - for NOW.

MadisonMan said...

Rucho v. Common Sense is how I read that. Then I re-read. Oh. Common Cause.

Ann Althouse said...

"Note that the NYT said the Court "kicked the can down the road". IMO, any decision that will keep the federal government from grabbing more power and control is a good one."

I think you must be talking about the census case. If you're talking about the gerrymandering case, please explain why you are saying that or point to the actual NYT article. I can't make sense of it.

If you're talking about the census case please delete and take it to the other post.

rcocean said...

People always get two things mixed up.

1) Should the government do or not do something.
2) Does the SCOTUS have the right to make that decision.

If fact, Roberts in his opinion seems to imply that if the victims of Gerrymandering had fewer options then the Federal Courts should have gotten involved. Which is just wrong. But Judges NEVER want to give up power. The door always has to be left open.

cubanbob said...

At least the Court was sensible enough to know its limits. Gerrymandering has been around since there have been political parties in the US and will always be around. As long as someone who is otherwise qualified to vote hasn't been deprived of the right to vote, then how a district is gerrymandered is irrelevant. There is no right to outcomes, only the right to cast a vote.

Ann Althouse said...

"We were filling time while you "updated" !"

The topic was clear. Writing about another case was confusing and distracting.

Go back to the last open thread if you want to talk about something that doesn't have a post.

I can't write about multiple cases at once. The gerrymandering case is extremely important. The census case is a minor glitch with no interesting legal substance that I could see (and I still don't see it).

It's disrespectful to me to hijack the thread.

I could have put up a general talk-about-the-SCt post, but I didn't think of it.

mockturtle said...

I think you must be talking about the census case. If you're talking about the gerrymandering case, please explain why you are saying that or point to the actual NYT article. I can't make sense of it.

No, I'm not: Adam Liptak but it was from a June 18 article [my bad!] entitled, "Supreme Court Avoids an Answer on Partisan Gerrymandering". No doubt they are sorry the can has now been properly disposed of.

Ignorance is Bliss said...

"Say what the law is" means to look at the law, read it, and say what it means

Words have meaning, and "is" doesn't is "mean".

(And if you have trouble reading that sentence then I think I've made my point.)

Richard Dolan said...

CJ Roberts notes that predictions about the dire partisan impact of redistricting decisions have proven unreliable, and that, to the extent there is a problem, other political actors are better placed to deal with it. He also is well aware that many lower court judges are less circumspect in diving into political battles, giving rise to the notion that these cases are decided the day the make-up of the three-judge panel is determined.

Very sensible.

Milwaukie guy said...

For an excellent example of Democrat gerrymandering, look at the CDs around Chicago. I used to live in Luis Gutierrez's mouse ears.

Anonymous said...

The Courts have no place in deciding this purely political question. I am liking the pattern that this court is setting of beginning to limit the powers of both the courts and the bureaucracy. It is overdue. Give the powers back to the states. They may make a mess of it, but the mess will be made by the citizens closest to whatever the issue is and that, I believe, is what the Founders intended.

Milwaukie guy said...
This comment has been removed by the author.
Milwaukie guy said...

whoops, wrong thread

mockturtle said...

Give the powers back to the states. They may make a mess of it, but the mess will be made by the citizens closest to whatever the issue is and that, I believe, is what the Founders intended.

A double AMEN! to that, bro!

My name goes here. said...

So. lets say a census says that a state gets 9 representatives. Could they make each of them At-Large? That is to say that each representative represents the entire state. All voters would go to the polls and vote for 9 different candidates for the 9 representative offices?

Howard said...

Don't know if it's the correct decision, but it was the practical one.

n.n said...

but the mess will be made by the citizens closest to whatever the issue is and that, I believe, is what the Founders intended.

With a few notable exceptions, yes. For example, the 3/5 compromise to limit democratic leverage. With progress we now have 1/2 and even 0 (selective-child) Americans.

Not an oldster. said...

Ann chooses to spend her time doing in-depth analysis of the undercard decision today...

Respect her choice, gentlemen!

Gahrie said...

So. lets say a census says that a state gets 9 representatives. Could they make each of them At-Large? That is to say that each representative represents the entire state. All voters would go to the polls and vote for 9 different candidates for the 9 representative offices?

Theoretically, yes. In Utah or Montana they could probably get away with it. But anywhere with a large non-white population you'd run into Voting Act requirements.

Gahrie said...

In Marbury, the Court said what a statute meant (that a particular type of case was in the Court's original (as opposed to appellate) jurisdiction) and also said what the Constitution provided about the legislative power to make jurisdiction statutes, found a conflict, and said what you do under the law when a statute is inconsistent with the Constitution.

That's the "saying" of Marbury.


I used to be a big fan of Marbury. I appreciated the way Marshall crafted the decision in such a way that no one would want to challenge it.

Then I did some independent research of the case. Boy did things change. I now consider it to be an illegitimate decision, and the beginnings of the politicization of the court. First of all, how was Marshall not forced to recuse himself? He created the controversy (I now believe deliberately) in Marbury V Madison personally while serving as Chief Justice of the Supreme Court and Secretary of State for the United States simultaneously. He's the one who didn't deliver Marbury's warrant and left it on his desk for Madison!

When you taught this case hundreds of times, did you ever teach your students this?

Anonymous said...

Kagan continues to assume that she and her fellow judges know better how to divvy up the votes in any particular state. Hubris couched in legal terminology!

Leland said...

It's disrespectful to me to hijack the thread.

I understand you may feel that way, but it certainly was not the intent of those who posted prior to your correction. They, and I, were absent malice.

narciso said...

it's fascinating, isn't it like the way mueller found himself in this position of independent council, thanks to all his associates, like the phillip james pretext to the warren hastings impeachment by burke,

Chuck said...

Big, BIG case. Magnificent blog post, Althouse.

The absolute Number-One-With-a-Bullet case on my hit list cases of SCOTUS decisions to be reversed and stare decicis be damned; is Arizona State Legislature v. Arizona Independent Redisitricting Commission.

rcocean said...

"It's disrespectful to me to hijack the thread."

I can't speak for anyone else but I wasn't trying to "Hijack" anything. I was trying to kill time before you "updated". And would have posted on the "Census Post" if it had been up.

Chill out.

rcocean said...

One last comment. This case shows how absurd it is to talk about the SCOTUS says this, or the SCOTUS says that.

Put Garland on the Court -instead of Gorsuch - and keep Kennedy or replace him with another Hillary pick and we'd have a decision in favor of the Federal Courts drawing Congressional District lines because of "Muh Constitution".

Why everyone agrees that the SCOTUS should have unlimited power to decided everything -with the only limit being their own opinions - is beyond me. That's not what Hamilton, Washington and Madison wrote in the Constitution.

Amadeus 48 said...

The courts were largely quiescent during the years from 1932 to 1994 when the remnants of the old New Deal coalition ruled the roost by gerrymandering districts to keep the Dems in charge of the House for all but four of 62 years. But then 1994 came, and then 2010--and the GOP looked to be the majority for the next forty years. Something must be done! There is gerrymandering going on! It must be unconstitutional, because the Dems are on the wrong end of it.

Well, because black Americans still vote largely Democratic, there will be still be cases where the federal courts in effect decide gerrymander cases on political grounds, but Roberts kicked the props from under the move to make every such case a Constitutional quagmire.

Let the co-option of the nonpartisan redistricting commissions begin!

The brothers Koch got tired of being the moneybags for a bunch of GOP statists who were also Washington swamp creatures, so they aren't going to play.

Mr. Soros has a plan. The Left never sleeps and never gives up. They want power by any means necessary.

I'd say the GOP better watch out.

The Godfather said...

Much as I hate to give aid and comfort to a commenter who chooses "Ignorance" as part of his nom de blog, but (contra Prof. Althouse) CJ Marshall's statement that it is the role of a court to "declare what the law is" was used (by Marshall and later many other judges) to develop a theory of judicial power to review and overturn decisons made by the republican branches of the Federal and State governments. Both the Census decision and the gerrymandering decision today are examples of this (in the former, the Court disapproved of a decision by the (elected) President's delegate, in the latter, the Court allowed the (elected) State legislatures' decisions to stand). The Court's decisions in these cases may be good or bad, but they reflect an exercise of a power not expressly granted to the courts in the Constitution, and first claimed by CJ Marshall in Marbury v. Madison.

Amadeus 48 said...

"That's not what Hamilton, Washington and Madison wrote in the Constitution."

But John Marshall, the greatest chief justice and the last Federalist, put the Supreme Court into the game in a way that has largely protected the liberties of the citizens and preserved a national union largely devoted to life, liberty, and the pursuit of happiness. Would you have wanted to be governed by the unchecked power of the national legislature and POTUS since 1789? Judicial review is an important adjunct to voting rights and trial by jury (discussed yesterday).

narciso said...

Yes, really how about Taney in Dred Scott, Brown in Plessy, who wrote the majority opinion in Korematsu, lets say it's an imperfect remedy,

rcocean said...

Judicial review is one thing. Incorporation of the Bill of Rights through the 14th Amendment and applying it to States is something completely different. So is the ability of an appeals court or district court to issue an injunction against the President. So is the ability of the Federal judiciary to second guess every administrative decision.

What right does a district judge or appeals judge have to tell the President what should be in the Census? That's NOWHERE in the Constitutions. In fact, the Appeals courts are created by Congress, and their cognizance is completely set by Congress.

As Judge Thomas points out the first nationwide injunction issued by a district court was in the early 1960s.

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

Korematsu v. United States was a valid decision that deferred to the executive in wartime.

Dred Scott was a power-grab by the SCOTUS trying to make it impossible for a state to forbid slavery. It was a "Slaveholder rights" decision.

The two are completely different.

mockturtle said...

Regarding Arizona State Legislature v. Arizona Independent Redistricting Commission, per Chuck's post: Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. So Roberts isn't always on the wrong side of the decision.

mccullough said...

Nothing imperils our system of government more than unelected judges overturning laws and actions that are not banned by the Constitution.

Kaganis an activist. Gay marriage was never allowed in this country until recently by a few states. It is nuts to take an amendment written in 1868 to ban racial discrimination and apply it to whatever bothers some judge nowadays. Constitution says nothing about abortion either. Not a word. The Left doesn't like the Second Amendment but the word ARMS is in the fucking constitution.

This was a good decision. The Constitution has absolutely nothing to say about partisan gerrymandering. The Constitution says nothing about political parties at all.

Kagan was supposed to be the smart liberal. Like Obama. Like Obama, she's pretty fucking dumb.

Bob Loblaw said...

Back when I lived in Montgomery County Maryland, the Democrats drew up districts for the state legislature that were pie-shaped, with the pointy ends poking deep into the incandescent blue inner suburbs and effectively disenfranchising the more Republican outer suburbs. My conclusion is that Democrats are in love with gerrymandering (more correctly, refuse to recognize that it exists) when it benefits them, and only dislike it when it works in favor of Republicans.

It's funny how Democrats like to bring up Texas as an example of a state gerrymandered by Republicans. But to do so is to ignore the fact that it was heavily gerrymandered in favor of Democrats before the Republicans redrew legislative districts. So much so that every single statewide office was held by a Republican and yet the state's congressional delegation was Democratic by a comfortable (for the Democrats) margin.

Both parties do it, and they both pretend they're not doing it. Here in California the Democrats were smart in 2000 - they made every district safe (for both parties) except for Gary Condit's, as Condit was embroiled in a scandal at the time. They essentially froze the delegation with a healthy Democratic majority and got buy in from Republicans who held office. I think that's when California Republican voters gave up in disgust.

Of course, it was all done by a nonpartisan committee, assuming you believe in fairy tales.

Chuck said...

mockturtle said...
Regarding Arizona State Legislature v. Arizona Independent Redistricting Commission, per Chuck's post: Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. So Roberts isn't always on the wrong side of the decision.


The Arizona Redistricting Commission case is the end-run around even today's decision. Eight states now have them, and that number will grow. More and more, redistricting will be done by commissions and not by legislatures at all, and as that happens this (good and wise) decision of today will be left more and more meaningless.

The dissents in the Arizona case were scathing. Roberts' dissent was scathing. It was not just Scalia and Thomas. They were all so scorching, that I cannot imagine Roberts ever upholding the majority opinion as something that must be respected as precedent.

mockturtle said...

Thanks for the info, Chuck. I'm a new resident in AZ and didn't know about that.

Sebastian said...

"But in Baker v. Carr, the Court rejected the idea that redistricting was entirely left to the legislature."

In other words, in that case, the Court made something, expecting future courts to stick with it. Stare decisis.

"It detailed the "political question" doctrine, identifying 6 factors,"

Factors derived from -- what?