June 17, 2019

"One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process."

Writes Justice Ginsburg for the majority this morning in Virginia House of Delegates v. Bethune-Hill, a racial gerrymandering case that the court below decided against the state of Virginia.

The majority consists of the refreshing assemblage of Ginsburg, Thomas, Sotomayor, Kagan, and Gorsuch. Alito writes a dissenting opinion joined by Roberts, Breyer, and Kavanaugh.

After the 3-judge district court decided the case against the Virginia State Board of Elections, the state Attorney General said that the state would not appeal. (The appeal would be directly to the Supreme Court under the jurisdiction statute.) "Virginia has thus chosen to speak as a sovereign entity with a single voice," and the House of Delegates had no standing to continue the litigation. That's the majority's take.

The dissent stresses the 3-part "injury-in-fact" test for standing, finds that the House has the needed "concrete and particularized injury," and declares it "revealing that the Court never asserts that the effect of the court-ordered plan at issue would not cause the House 'concrete' harm." You can articulate an injury the House faces, and Alito does:
When the boundaries of a district are changed, the constituents and communities of interest present within the district are altered, and this is likely to change the way in which the district’s representative does his or her work. And while every individual voter will end up being represented by a legislator no matter which districting plan is ultimately used, it matters a lot how voters with shared interests and views are concentrated or split up. The cumulative effects of all the decisions that go into a districting plan have an important impact on the overall work of the body....

Districting matters because it has institutional and legislative consequences....

What the Court says on this point is striking. According to the Court, “the House as an institution has no cognizable interest in the identity of its members,” and thus suffers no injury from the imposition of a districting plan that “may affect the membership of the chamber” or the “content of legislation its future members may elect to enact.” Really? It seems obvious that any group consisting of members who must work together to achieve the group’s aims has a keen interest in the identity of its members, and it follows that the group also has a strong interest in how its members are selected. And what is more important to such a group than the content of its work?
It's just not the right kind of injury for standing purposes, as the majority sees it. Maybe it hurts, and maybe these litigants care, but they can't invoke the judicial power for relief from an injury like this.

33 comments:

Fen said...

Good God. Did any of your students just face-plant into their desk and snore away during a lecture. It's not you, it's the material, I had to read it 3 times to make any sense of what was being discussed.

And still, whenever I get to the part where - dsfjiaksj

Ray - SoCal said...

It is refreshing to have a decision made that crossed the usual voting blocks, on both the winning and losing sides.

Unfortunately I don’t understand if the decision was a good or bad one.

Leland said...

As a lay person, I want to agree with the majority here, because otherwise you have a situation were a chamber of a legislative branch can turn to the courts to decide a matter in which both chambers cannot agree. I see a problem there.

However, I am annoyed that it seems automatic now for a conservative legislature to draw a redistricting map only to be sued by racial groups claiming racism against them; and then a court made of a much smaller group of elected officials gets to make the redistricting map. And usually the map looks more odd coming out of the courts, because they are making a map that does consider race, thus truly is racist. For that reason, I would have wanted the Virginia House to win the case.

Birkel said...

I do not like that a governor/AG can tactically lose cases.
That seems a poor substitute for zealous representation.

I see that as a structural problem not addressed by the Court.
It seems a gaping hole.

EDH said...

It seems obvious that any group consisting of members who must work together to achieve the group’s aims has a keen interest in the identity of its members, and it follows that the group also has a strong interest in how its members are selected. And what is more important to such a group than the content of its work?

From the future appellate brief in Deep State v. Trump?

tim maguire said...

It seems obvious that any group consisting of members who must work together to achieve the group’s aims has a keen interest in the identity of its members, and it follows that the group also has a strong interest in how its members are selected.

I disagree. The people of the state have an interest in ensuring that the members of the legislative body are selected according to the law. The body itself does not have a legally cognizable interest in either the identity of the members or how they are selected.

Michael K said...

I do not like that a governor/AG can tactically lose cases.
That seems a poor substitute for zealous representation.


That happened twice in California and both by Jerry Brown. Prop 187 tried to block illegals from welfare benefits. t passed with 60% in favor including a majority in Hispanic districts. A judge threw out the result as "Unconstitutional." No appeal was filed and California began the slide that is now obvious.

Then Prop 8 (Marriage defined) passed with a 63% majority. A federal judge tossed it out as "Unconstitutional" (Then married his gay lover ) and, again, no appeal was filed.

mccullough said...

Virginia, like Maryland, is just a department in the federal government.

Move the capital to Sioux Falls, SD and those two states would go under.

I agree with the majority. The State legislature is not injured. Good to see Gorsuch voting how Scalia would. It’s like when Yazstremski replaces Williams in left field for the Red Sox

Birkel said...

Shorter Doctor Michael K:
TheCaliforniaDisease has spread.

Q:
Will the patient survive?

Danno said...

Sounds like states with very political AGs are bound by those politics.

Danno said...

"Move the capital to Sioux Falls, SD and those two states would go under."

The Dept. of Agriculture has been working to move two pieces of its function to the Kansas City area. Lots of federal agencies make no sense in DC.

Do it the Johnny Cash way. One piece at a time!

Phil said...

This sounds like an argument to deny cert.

Danno said...

I just saw that the Oregon bakers kicked ass at SCOTUS.

narciso said...

The beating will continue till morale improves

BleachBit-and-Hammers said...

I have no comment accept - yeah -that is a weird assortment. I kinda like it.


AS to gerrymandering - It's all A-OK when democratics do it.

BleachBit-and-Hammers said...

Virginia, like Maryland, is just a department in the federal government.

Indeed. and the cancer is spreading.

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

Does this mean Rhode Island , Vermont and Delaware need to share 2 Senators and not use 6?

SeanF said...

mccullough: Move the capital to Sioux Falls, SD...

What the hell, dude. What did we ever do to you?!

Richard Dolan said...

Restrictive standing rules are a way of limiting the reach of judicial power, a result traditionally favored by conservatives and opposed by lefties. Beware what you wish for.

Chuck said...


For about the seventy-fifth time, Althouse; I love your "law" posts.

Birkel said...

Eddie Haskell LLR Chuck, self-admitted racist and fopdoodle extraordinaire, tries once more to gain attention...

Was the juice worth the squeeze?

JackWayne said...

They punted. Yawn. Typical from a Roberts court.

narciso said...


https://www.msn.com/en-us/news/us/justice-thomas-urges-us-supreme-court-to-feel-free-to-reverse-precedents/ar-AAD1ndv?ocid=spartandhp

narciso said...

A peculiar way to phrase it,

JackWayne said...

I think their decision on double jeopardy is not problematic, it is wrong.

Nobody said...

I wonder how Tribe feels about this with his single chamber impeachment idea?

blnelson2 said...

Isn't it funny how it's mostly Democrats who like gerrymandering and use it to keep themselves in power. And now the Supremes have made sure this will continue indefinitely. And, yes, their double jeopardy decision is wrong; but is now the law of the land. Bah.

Mark said...

If Blackface Herring does not want to defend the laws of Virginia, then he should either quit as AG -- he should have already resigned because of his racist acts -- or he should be disbarred. The people of Virginia have a right to counsel.

Josephbleau said...

If you are in Nebraska and have a unicameral state government your fate is uncertain.

Josephbleau said...

The senate house divide was intended to pit money against the common man. Btw I listen to Copeland and his fanfare to the common man often, as well as the annual reprise of Appalachian spring. Even though he was a commie, love the art hate the man. I had a similar problem inviting a Jewish girl to Wagner.

Josephbleau said...

A mathematician reduces unknown problems to ones that were previously solved. Qed. It did not help in the above instance.

Cato said...

The Governor and the attorney general, who refuses to do his job, both voted for this redistricting when it passed and they were in the legislature! For them to call democrat federal judges imposing a democrat redistricting plan for 20 out of 100 house seats an act of "democracy" is just total BS. It is the opposite of democracy. Furthermore, the Obama justice department APPROVED this "racist" redistricting plan!

This is all the work of Soros and the international socialists conspiracy.