"Supreme Court allows Tennessee ban on gender-transition care for minors."

Free-access link to WaPo, here.

Here's the full text of the opinion, which is 6-3, divided as you would expect a 6-3 case to be divided. The Chief writes the opinion, and the other 5 conservatives join, but Alito only joins parts I and II-B. There are concurring opinions from Thomas, Barrett, and Alito. There's also some discord among the dissenters, with Kagan only joining part of Sotomayor's opinion. 

MORE: The Chief's opinion rejects heightened scrutiny because the Tennessee law — "[w]hen properly understood from the perspective of the indications that puberty blockers and hormones treat" —  "does not classify on the basis of sex." 

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.

"The passport policy does indeed impose a special disadvantage on the plaintiffs due to their sex and the court therefore concludes that it discriminates on the basis of sex."

Wrote Judge Julia E. Kobick, quoted in "Judge Rules Against Trump Administration on Passport Changes/A group of transgender plaintiffs sued President Trump and the State Department over a new rule prohibiting passports from including a gender different from the sex listed on an original birth certificate" (NYT).

"The Supreme Court appeared split along partisan lines Monday over the creation of a second Black-majority congressional district in Louisiana...."

Writes Justin Jouvenal, in "Supreme Court seems split on Louisiana voting map, majority-Black districtsSeveral conservative justices were skeptical that the Voting Rights Act’s attempts to redress past discrimination can coexist with the Equal Protection Clause" (WaPo).

The legal arguments in the case center on the extent to which states can consider race in drawing legislative maps, a power they were granted as part of the Voting Rights Act in an attempt to address discriminatory electoral practices.

I wouldn't have written "granted."

Such maps cannot, however, be explicit racial gerrymanders.

Whatever happened to implicit racism? 

Did anyone listen to the oral argument this morning in the racial gerrymandering case?

I listened to some of it, and now I'm reading "Supreme Court hears pivotal Louisiana election map case ahead of 2026 midterms/The Supreme Court decision could reshape Louisiana's election map and may redefine rules for gerrymandering nationwide ahead of the 2026 midterm elections" (Fox News).

This is a painful topic — I've taught it in conlaw many times — because of the conflict between the constitutional requirement of equal protection (which one might think frowns rather severely on race discrimination), and the statutory interpretation, which requires that states create majority minority districts. The Constitution ought to win, you might think, but what if you really want the statute to win?

Unfortunately, the linked article doesn't tell us anything about the oral argument. I'll try to update with a better article or material from the transcript.

"Could One Phone Call Lead to the 28th Amendment?"

The new episode of the NYT "Daily" podcast — audio and transcript here (at Podscribe).

This was annoying to listen to for so many reasons, but I will leave it to you to discover most of them. I'll just pick out one glaring problem: The abortion right that was found in Roe and rejected in Dobbs was never based on equality. It was based on substantive due process, sometimes phrased as privacy, found in the Due Process Clause. If the ERA could be a source of a new right to abortion, the Equal Protection Clause is already there to serve the same purpose. One of the reasons the ERA failed back in the 1970s was because many people believed that all the equality rights women needed could be found in the Equal Protection Clause. What good was a new text to puzzle over? 

"You mentioned fertility and regret, and I'd like to take both of those concerns head-on."

Said the Solicitor General Elizabeth B. Prelogar, arguing against state law that restricts access to puberty blockers and hormones as a treatment for gender dysphoria. Full transcript here. Audio here.

I do want to acknowledge that there is evidence to suggest that gender-affirming care with respect to hormones can have some impacts on fertility. Critically, puberty blockers are -- are -- have no effect in and of themselves on fertility, so I don't think that concern can justify the ban on puberty blockers, which is just pressing pause on someone's endogenous puberty to give them more time to understand their identity. With respect to hormone use, there are some effects on fertility, but the court found that many individuals who are transgender remain fertile after taking these medications. They can conceive biological children. 

Listening to the oral argument in the Supreme Court's affirmative action case.

"Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor..."

"... with its own distinctive political incentives, internal divisions and weaknesses.... To confront a hostile Supreme Court, the people and their elected leaders need to be confident that they, too, have the power and the obligation to interpret the Constitution.... To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution.... This term, this court will decide how far to go in shutting down both affirmative action and race-conscious protections for equal opportunity in the voting arena.... [T]he right-wing court has decided that these amendments prohibit race-conscious efforts to redistribute some political and economic power and opportunity to Black Americans. Progressives today should do more than argue that such efforts are something the Constitution permits. They should explain instead — as Justice Ketanji Brown Jackson did on her first day on the bench — that the Constitution here means just the opposite of what the Supreme Court majority says. Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands.... The rights this court denies and the laws it strikes down are often ones the Constitution demands...."

From "How Liberals Should Confront a Right-Wing Supreme Court" by lawprofs Joseph Fishkin and William E. Forbath in the NYT.

Presented for discussion, not in agreement, though I don't disagree with every word of it.

The reference to Justice Jackson is to the oral argument in Merrill v. Milligan (beginning at page 57 in the transcript):

"We see the tradition of independent, self-governed nations as the foundation for restoring a proper public orientation toward patriotism and courage, honor and loyalty..."

"... religion and wisdom, congregation and family, man and woman, the sabbath and the sacred, and reason and justice. We are conservatives because we see such virtues as essential to sustaining our civilization. We see such a restoration as the prerequisite for recovering and maintaining our freedom, security, and prosperity. We emphasize the idea of the nation because we see a world of independent nations—each pursuing its own national interests and upholding national traditions that are its own—as the only genuine alternative to universalist ideologies now seeking to impose a homogenizing, locality-destroying imperium over the entire globe...."

 
That's from "National Conservatism: A Statement Of Principles/A world of independent nations is the only alternative to universalist ideologies seeking to impose a homogenizing, locality-destroying imperium over the entire globe" by The Edmund Burke Foundation (published at The American Conservative). 

I found that through "Beware of ‘national conservatives’ who dispense with American ideals" by Henry Olsen, at The Washington Post. He begins...

There’s a lot to like about the burgeoning “national conservative” movement, which stands against the increasingly stale, pre-Trump intellectual orthodoxy on the right....

... but quickly switches to criticism. Trump is, of course, awful, so hooray for the alternatives that might lure conservatives away from Trumpism, but any alternative that works will swiftly become the new target. 

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)):

Federal judge says a public charter school violated Equal Protection by requiring girls (and not boys) to wear skirts.

WaPo reports.

Baker Mitchell, founder of the Roger Bacon Academy, which runs Charter Day School [in North Carolina]... explained in an email that the dress code, along with other policies, were meant to “preserve chivalry and respect among young women and men.” He cited societal concerns such as “teen pregnancies” and “casual sex” for the need to create a learning environment that “embodied traditional values.”...

According to the decision, the skirt requirement forced girls to “pay constant attention to the positioning of their legs during class, distracting them from learning, and has led them to avoid certain activities altogether, such as climbing or playing sports during recess, all for fear of exposing their undergarments and being reprimanded by teachers or teased by boys.”

The school had defended its policy, saying it was based on “traditional values” and “is in place to instill discipline and keep order,” Howard summarized in his decision. “They argue that taking away the ‘visual cues’ of the skirts requirement would hinder respect between the two sexes.”...

“Defendants have shown no connection between these stated goals and the requirement that girls wear skirts,” [U.S. District Judge Malcolm Howard] wrote.

It is hard to see how requiring girls to wear skirts constrains sexual expression. It constrains all sorts of physical activities other than sex. It really facilitates sex, especially if sex includes looking up a girl's skirt and — to use the presidential locution — grabbing her by the pussy.

My schoolgirl days were spent entirely in skirts. It was required, and then we were sent to the vice principal's office for wearing the wrong length skirt. Especially me. I vividly remember sitting through the vice principal's lecture about the sexual suffering of boys when they were subjected to the presence of a girl in a miniskirt. I felt like he was sexually harassing me by talking about sex so intensely. He was making it sexual, imposing man-mind on me, when I, required to wear a skirt, simply insisted on wearing the skirt that was in fashion. Let me wear pants, and your sex problem is gone. Unless it's not. You dirty old man.

Now... that's enough 1966. Back to the present. The most interesting part of the North Carolina dispute is defending it in the name of chivalry. Chivalry is (to pick the most apt definition in the OED) "The brave, honourable, and courteous character attributed to the ideal knight; disinterested bravery, honour, and courtesy; chivalrousness." Wouldn't it be great if there were the choice to send your son to a charter school where they shaped him into a brave, honorable, courteous, ideal knight? But if it's a co-ed school, what are they offering the girls? I'd say having male classmates who are expected to behave like ideal knights is itself a great offer, but I assume the girls too would be called to bravery, honor, and courteousness.

"A federal judge has ruled that a men-only draft is unconstitutional...."

Military.com reports.

"This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the law," wrote U.S. District Judge Gray Miller of the Southern District of Texas.

The lawsuit was filed in 2013 against the Selective Service System by Texas resident James Lesmeister, who later added San Diego resident Anthony Davis and the San Diego-based National Coalition for Men as additional plaintiffs....

"Forcing only males to register is an aspect of socially institutionalized male disposability and helps reinforce the stereotypes that support discrimination against men in other areas" such as divorce, child custody and domestic violence services, [Coalition attorney Marc] Angelucci said. "Women are now allowed in combat, so this decision is long overdue," he added. "After decades of sex discrimination against men in the Selective Service, the courts have finally found it unconstitutional to force only men to register."...

The judge... disagreed with the government's position that drafting women would be an administrative burden and that far more women than men will be found physically unfit for service after being drafted. Congress has expressed few concerns about female physical ability, but did focus more on societal consequences of drafting young mothers to go off to war, Miller said.

This goes against the Supreme Court case Rostker v. Goldberg, which I taught many times in Conlaw class. I've often thought about the specific, important physical difference between men and women — that only women can bear children. In an existential military predicament, we might care very much about maintaining the population. Quite aside from that, I think it would be hard to institute a draft if it meant forcing women into military service. But it would be hard to institute a draft and to give all women and no men the right to say yes or no about what happens to their bodies.

But the fact is we don't have the draft. We just have this registration for the draft — the theater of the potential draft. And what's showing in the government's theater matters not because of the reality of military service but because of the message. That's why the lawyer spoke in terms of reinforcing stereotypes.

Full disclosure: My mother was one of the first WACs, and my parents met in the Army, and I know for a fact that I only exist because of women in the military.

It's sad that there isn't more information about the life this woman lived.

I'm reading "Linda Brown, Symbol of Landmark Desegregation Case, Dies" in the New York Times, and there is almost nothing in it about the individual Linda Brown. Does "symbol" say it all? The name on the case, Brown v. Board of Education, isn't Linda Brown, but Oliver Brown, her father.

Here is all we are told of the person who died...

She was 75. Her death was confirmed on Monday by a spokesman for the Peaceful Rest Funeral Chapel in Topeka, which is handling her funeral arrangements....

We don't know what day she died, only the day the death was confirmed. We're not told how she died or where.

Linda Brown was born on Feb. 20, 1943, in Topeka to Leola and Oliver Brown, according to the funeral home. (Some sources say she was born in 1942.)

We're not really even sure when she was born.

The neighborhood the family lived in was integrated. “I played with children that were Spanish-American,” Linda Brown said in a 1985 interview. “I played with children that were white, children that were Indian, and black children in my neighborhood.”

Nor were her parents dissatisfied with the black school she was attending. What upset Oliver Brown was the distance Linda had to travel to get to school — first a walk through a rail yard and across a busy road, then a bus ride.

“When I first started the walk it was very frightening to me,” she said, “and then when wintertime came, it was a very cold walk. I remember that. I remember walking, tears freezing up on my face, because I began to cry.”

We're told of the historic litigation, ordering the desegregation of schools.

By the time of the ruling, Ms. Brown was in an integrated junior high school. She later became an educational consultant and public speaker....

Nothing about the topics of consulting and speaking. I guess we're expected to presume she spoke about the litigation, but what did she say and what did she think? This little squib only hints:

As for her role in the landmark case, Ms. Brown came to embrace it, if reluctantly. “Sometimes it’s a hassle,” she told The Herald [in a 1987 interview], “but it’s still an honor.”

What's the story there? What was the "hassle"? Is there a fear of opening up this story, because she is needed as a "symbol." I'd like to know her complicated thoughts on the subject of the honor that was a hassle — the hassle that was an honor.

Ms. Brown was married several times. 

Several times — not a specific number. Did the NYT not find out the number? We're there some ambiguous interludes that were maybe marriage maybe not marriage? It's all so vague — the death, the life, the person.

The funeral home said her survivors include a daughter, Kimberly Smith, although it did not have a complete list of survivors.

That makes me feel very sad, as if she was used and then lost track of.

UPDATE: The NYT now has a correction: "A picture with an earlier version of this obituary was published in error. The photograph, released by The Associated Press, misidentified the woman in the image. The image showed another student, not Linda Brown."

"Two boxes today... Two boxes is likely to mean two or more opinions, depending on their length."

I'm following the live-blogging of the Supreme Court at SCOTUSblog.

Ah! We just got the first Supreme Court opinion ever by Neil Gorsuch.

It's a unanimous opinion, affirming something about Fair Debt Collection Practices Act.

The court holds that a company may collect debts that it purchased for its own account... without triggering the statutory definition of "debt collector."

UPDATE: Sessions v. Morales-Santana. This is an important case on citizenship law and sex discrimination. 

This is a challenge to U.S. citizenship laws, which treats children are born overseas and have one U.S. citizen parent and one non-U.S. citizen parent differently depending on which parent is the U.S. citizen; children of U.S. citizen mothers are treated more favorably.... The court holds that the differential treatment by gender "is incompatible with teh requirement that the Government accord to all persons "the equal protection of the laws.'"

However, the court adds, it cannot convert the exception for mothers who are not married into the main rule displacing the provisions covering married couples and unwed fathers. Put another way, it can't rewrite the laws. So what it does is "leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen parent and one alien parent, wed or unwed."

And, meanwhile, "the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination."

This was a question that the court agreed to review in another case several years ago, before Scalia died, but they deadlocked 4-4 because Justice Kagan was recused.

I want to read the opinion. I'll talk about this more later.

I'm very interested to see what Justice Ginsburg has written about sex discrimination. (It's so easy to father a child! You don't even need to be within a thousand miles of the mother.) There is no dissenting opinion, however, and Roberts and Kennedy join Ginsburg's opinion. Thomas and Alito have a concurring opinion.

The Thomas opinion, joined by Alito, is easy to read and shows the problem, so I'll leave you with this:

Well, affirmative action has been upheld by the Supreme Court, so maybe that filters down to people...

... as meaning that discrimination in favor of a historically-discriminated-against group never violates the Constitution.

At the University of Wisconsin-Madison — where I used to teach at the law school — the Associated Students of Madison voted for a resolution that said the university should give free tuition and housing to all black students, according to this AP article.

I'm not seeing the text of the resolution or enough detail about the debate, so I don't know if there was any consideration of whether the proposal violated the Equal Protection Clause. Did anyone even mention it? 

The panel of judges in the Wisconsin redistricting case decline the work of doing the new line-drawing.

The Republican-dominated state legislature will have to redraw the lines itself, which the panel had found to be unconstitutional political gerrymandering.

“It is the prerogative of the state to determine the contours of a new map,” the three-judge panel ruled.

That was a significant loss for the plaintiffs, after their win on the merits last fall.

The same three-judge panel ruled in November that Wisconsin’s legislative boundaries are an “unconstitutional partisan gerrymander” that “was intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”

And the win on the merits is unlikely to survive Supreme Court review. The state is going to appeal to the Supreme Court, and the jurisdiction statute requires the Court to take the case on appeal directly from the district-level panel. No stop at the 7th Circuit. No petition for certiorari. This will be heard in the Supreme Court — which has never found any redistricting to be unconstitutional political gerrymandering.

This case introduced a new way to measure the equal protection problem in districting, the "efficiency gap" which looks for each party's "wasted votes":

Wasted votes, accrding [sic] to the efficiency gap’s creators, are the number of “lost” votes cast for losing candidates and “surplus” votes for victorious candidates in excess of what they needed to win.

This test helps Democrats overcome the problem of having its voters concentrated in relatively small geographic spaces — that is, cities. It would make an equal protection problem out of a pattern of human behavior. It's basically the same problem Democrats have with the Electoral College: Their voters aren't spread out enough geographically. This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.

And yet if the case were to go through the current 8-person Court, I think the panel's decision would be affirmed by an equally divided Court. And if Hillary Clinton had won the election and had the Supreme Court appointment to make, the new Democratic-Party-favoring test may very well have become the law.

"Those who imagine that democracy is a simple thing (one-person, one-vote!) are mistaken; democracy, according to Bickel, is a 'mystery.'"

Bickel is the lawprof Alexander Bickel, who published a book — "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System" — in 1971 that I wrote about shortly after the hotly contested, mind-bending election in 2000:

The electoral college is not “readily understandable,” but it has proven itself marvelously effective and adaptable. Bickel perceived Congress as biased toward the “rural, nativist, and Protestant,” and therefore warranting the counterbalance by a President whom the electoral college has compelled to appeal to urban minorities. Despite its favoritism for the large state and its well-defined urban subgroups, the electoral college serendipitously satisfies the rural and small-town residents of the small states: they feed on the “symbolic value” created by the electoral college’s recognition of the individual states. “It happens that the electoral college can satisfy, at once, the symbolic aspirations of the small states, and the present, practical needs of the large ones. Not many institutions work out as artistically as that.” Presumably, the citizens of large states do not suffer from the negative symbolism of the constant two; perhaps their urban savvy enables them to see real advantage, while the rubes are placated by symbolism....

Bickel conceded that demographic change will inevitably take place, but trusted the system to “digest” any change and turn it once again to the good. Bickel’s constitutional system is a living organism, growing, adapting to change, and, apparently, possessed of a digestive tract. How much easier it is to trust the continued evolution of a living system that has adapted in the past than to look toward an untried reform, designed according to the reformers’ naïve reliance on abstract principle!

Why is it not the case, one might ask, that the large states and the urban minority groups, whom Bickel wanted to empower, would benefit at least as much from the direct vote plan? One imagines candidates motivated to pursue as many votes as they can get, regardless of geographic distribution, as efficiently as possible. Would they not gravitate to the densely populated urban areas and make proposals aimed at the well-organized and well-defined demographic groups? As Bickel asserted, the direct vote system would lead candidates to run national campaigns, ignoring the local urban concerns that are so important in the electoral college system. Bickel did not credit the direct vote proponents with practical sense: to him, they are fools, “mesmerized” by the one-person, one-vote slogan.... Instead of valuing the counterbalancing presidential role the electoral college promotes, reformers dreamed up the absurd idea that they ought to “amend the Constitution to make it mean what the Supreme Court has said it means.”

That last quote chimes with a column in the L.A. Times that many of us were reading over the weekend, in which lawprof Kenneth Jost goes so far as to assert that the Supreme Court could actually find the Electoral College unconstitutional because it fails to comport with the one-person-one-vote interpretation of the Equal Protection Clause of the 14th Amendment (which doesn't apply to the federal government, a fine point that can be taken seriously or brushed off, depending on what you want to see happen). Jost writes:

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. 

Well, yeah, it does, but let's continue:

The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” 

Lawrence v. Texas is an interpretation of the Due Process Clause which contains the word "liberty," and Kennedy was talking about looking for the meaning of "liberty" and seeing the abstract concept as something that can be understood differently at different times. There's no complicated search for the meaning of the Electoral College. The Constitution delineates it in explicit, concrete terms. There's no interpretation of the relevant words that can make it go away. You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution. Imagine what we could do with that. The Establishment Clause violates the Free Exercise Clause, etc. etc.

Let's get back to my article about Bickel's book:

It would make more sense, Bickel writes, to look at the good the electoral college has done and to infer the incorrectness of the one-person, one-vote principle. Indeed, the principle defies many of the structural components of constitutional law: the role of the Supreme Court, the two-senator allotment, the provision of at least one House member for each state, and the various requirements of supermajority. If Baker v. Carr is telling us to look with suspicion on all of those things, we ought instead to look with suspicion on Baker v. Carr. Democracy is not a matter of one-person, one-vote but of building “widespread assent” though the aggregation of a collection of minorities; “minorities rule” in a pluralistic country. Somehow, mysteriously, the electoral college achieves that real, complicated majority. Or so goes the Bickelian argument.

A 3-judge federal panel finds that the Wisconsin legislature gerrymandered to the point of violating the Equal Protection Clause.

The NYT reports. The unusual federal jurisdiction here begins with 3 district court judges, followed by Supreme Court review. The Supreme Court has never found any political gerrymandering to violate the Equal Protection Clause, and some of the Justices even reject the theoretical possibility of a violation.

Several election-law scholars said the ruling was especially significant because it offered, for the first time, a clear mathematical formula for measuring partisanship in a district, something that had been missing in previous assaults on gerrymandering.

The 2-to-1 ruling by the United States District Court for the Western District of Wisconsin said that the Legislature’s remapping violated both the First Amendment and the Equal Protection Clause of the 14th Amendment because it aimed to deprive Democratic voters of their right to be represented. “Although Wisconsin’s natural political geography plays some role in the apportionment process,” the court wrote, “it simply does not explain adequately the sizable disparate effect” of Republican gains in the State Assembly after the boundaries were redrawn.

The Western District of Wisconsin includes Madison, where the "natural political geography" is heavily Democratic. One way gerrymandering is done is by deliberately packing extra Democrats/Republicans into a district instead of spreading some of them around into districts where that party could become competitive. But Madison is a political unit that traditional principles of districting would keep together. So when is the party in power taking too much advantage — and how much should courts be trusted to push back that advantage?

In this case, the court was split 2 to 1. I would expect the Supreme Court — with its new Trump appointee — to reverse the decision. But I haven't yet read the case, and I'm wondering about this innovation that is the "clear mathematical formula for measuring partisanship."

Courts have generally agreed that some partisan advantage in redistricting is tolerable, in part because voters themselves are not spread equally across a state or district by party. But the plaintiffs in the case, 12 state Democrats represented by the Campaign Legal Center, had argued that the Wisconsin remapping was among the most sharply partisan in the nation.

But isn't that because Democrats have gerrymandered themselves by living in Madison and Milwaukee? I can believe we are the most sharply geographically partisan state in the union. It didn't take power-grabbing legislators drawing new and devious lines to make that so. It can be partly or mostly the behavior of people choosing where to live and being like-minded with our neighbors.

Their lawsuit said that in the 2012 elections for the Assembly, Wisconsin Republicans won 48.6 percent of the two-party vote but took 61 percent of the Assembly’s 99 seats.

That's like the way Hillary Clinton won the popular vote in the presidential election: Democrats crowd together in smaller parts of the overall territory. The math doesn't prove the lines were drawn aggressively to take partisan advantage. The state lines never move, and we see, in the national election, the effects of the people who are Democrats gerrymandering themselves. I'm skeptical of this "clear mathematical formula" as a measurement of what happened in the minds of the line-drawers.

In Monday’s ruling, the court was swayed by a new and simple mathematical formula to measure the extent of partisan gerrymandering, called the efficiency gap. The formula divides the difference between the two parties’ “wasted votes” — votes beyond those needed by a winning side, and votes cast by a losing side — by the total number of votes cast. When both parties waste the same number of votes, the result is zero — an ideal solution. But as a winning party wastes fewer and fewer votes than its opponent, its score rises.

That's simple, all right, but I'm very suspicious of the way that it is simple.

The problem/nonproblem of maternity leave without paternity leave.

Here's Prachi Gupta in Cosmopolitan, interviewing Ivanka Trump about her father's proposal to guarantee 6 weeks of paid leave to women who have given birth. The leave, as Ivanka clearly explains, is premised on the physical needs of the female body, recovering from childbirth and establishing breastfeeding. (Ivanka doesn't mention that not all mothers choose to breastfeed.)

Because women give birth (and breastfeed), there's a natural difference between men and women, and if you are interested in women's equality, you might want to provide a benefit that covers that difference. But many people worry that giving benefits only to mothers would exacerbate inequality over the long term, because it would reinforce the culture of presuming that childcare is mainly the mother's responsibility.

Gupta attempts to raise this concern:

[P]aternity leave is said to be a great factor in creating gender equality.

She doesn't explain this premise, but I can tell you that it is based on the debate about the old Family and Medical Leave Act, which the Supreme Court held to be premised on enforcing equality. (I wrote a law review article on the subject.) Requiring employers to give 12 weeks of leave to parents of both sexes — unpaid leave — was supposed to erode the stereotype that mothers are the primary caregivers. There was always a problem with that prediction: No one was forced to take the leave, and if new mothers took all that leave and new fathers did not, it would reinforce the stereotype and worsen the perception that female employees take too much time off. The employer has to cover for them during the guaranteed leave and accept them back at work even after 12 weeks of absence, year after year. But the idea was that fathers would take the leave too, and that would tend, over time, to balance childcare responsibilities, which would improve the image of women in the workplace.

I assume Gupta is familiar with this old debate, though she doesn't lay it out for Cosmo readers (or for Ivanka). She just says:

So I’m wondering, why does this policy not include any paternity leave?

Ivanka avoids the equality question and says maternity leave is better than nothing. Those who push the equality theory might say that it's worse than nothing, because it encourages the parent who gave birth to the child to become its primary caregiver. As the woman's body is recovering from the physical effects of pregnancy and childbirth, she's bonding with the baby and learning how to take care of it, and she may be establishing the ongoing physical process of breastfeeding. Meanwhile, the father is encouraged to keep working. The traditional division of labor is supported by the government.


Ivanka — in what looks like a bid to win over Democrats — brings up gay people:

Both sides of the aisle have been unable to agree on this issue, so I think this takes huge advancement and obviously, for same-sex couples as well, there's tremendous benefit here to enabling the mother to recover after childbirth. It's critical for the health of the mother. It's critical for bonding with the child, and that was a top focus of this plan.

Gupta tries to break in:

OK, so when it comes to same-sex—

But Ivanka continues:

So it's meant to benefit, whether it's in same-sex marriages as well, to benefit the mother who has given birth to the child if they have legal married status under the tax code.

You can see that she's only talking about recovery from childbirth. (And, indeed, it would probably violate the Equal Protection Clause for the government to give this benefit to women and not men if it is not tied to the physical differences between men and women.) The only gay person who gets this proposed benefit is the woman who gives birth.

Gupta either doesn't see this point or wants to talk about a much more expensive government benefit — paid leave for all new parents. She asks:

Well, what about gay couples, where both partners are men?

Ivanka repeats that the policy relates only to the physical recovery from childbirth. Gupta seems to understand but still wants to drive it home:

So I just want to be clear that, for same-sex adoption, where the two parents are both men, they would not be receiving special leave for that because they don't need to recover or anything?

The policy quite obviously doesn't cover any adoption. The sex of the parents is irrelevant. In adoption, no one has given birth. Ivanka laughs and says:

Well, those are your words, not mine. Those are your words. The plan, right now, is focusing on mothers, whether they be in same-sex marriages or not.

You're not going to get anything with the slightest tinge of homophobia out of Ivanka, I don't think. Gupta's effort to drum up the Cosmo reader's empathy for gay man should fail. The bigger problem  is that paid leave for mothers puts government money into skewing the decision of heterosexual couples toward the traditional division of labor.

Gupta's next question does have something to do with that problem, the stereotype that women are less valuable employees:

OK, I just wanted to make sure I understood. In 2004, Donald Trump said that pregnancy is an inconvenient thing for a business. It's surprising to see this policy from him today. Can you talk a little bit about those comments, and perhaps what has changed?

Ivanka doesn't seem to know what her father said 12 years ago, and she goes meta:

So I think that you have a lot of negativity in these questions, and I think my father has put forth a very comprehensive and really revolutionary plan to deal with a lot of issues. So I don't know how useful it is to spend too much time with you on this if you're going to make a comment like that....

She goes on about how good her father has been as an employer of women, and Gupta nonapologizes — she's sorry Ivanka finds the questions negative — and assures her that Trump really did say that pregnancy is "certainly an inconvenience for a business." He did. Ivanka says she doesn't know that he said that, and she's right to refuse to accept Gupta's presentation of what he said, which might be wrong (though it isn't) and might be out of context.

But Ivanka could have said: Her father was being admirably straightforward. Of course, it's an inconvenience when anything physical takes away from the employee's time and attention at work. But that has nothing to do with the woman's need to deal with recovery from childbirth. She must take some time to recover, and Trump's plan is to ensure that she has some paid leave.

And, if Ivanka had said that, Gupta should have said: But by making it even easier for the woman to take time off — 6 weeks off — aren't you going to intensify the inconvenience that employers see in women? Even your father — who, you say, has been so good with hiring and promoting women in his business — thought of their childbearing function as a problem. Aren't you proposing to spend government money to make that problem even worse, as it becomes more likely that female employees will take even more time away from work?

One more question, and it's not one I'd advise Gupta to ask: Won't this government spending draw women away from the workplace and the leaning-in style of careerism that feminism has promoted? As they have weeks of time alone with the baby, isn't government easing women into the comfort and happiness of the noncommercial life of the home and perhaps even a spiritual awareness that the best life is grounded in love and family and not a career at all?

"It's easy to predict that the Court will reject this claim and let the states keep relying on the longstanding population-based method of redistricting."

I wrote, last December, after reading the oral argument in Evenwel v. Abbott:

Even though there's some principled sense to the eligible-voter-based method, there's also principled support for the existing method. It would need to be much more obvious that there's something wrong with the existing method before the Court would declare that what's been done for so long is not even permissible, especially when it would require states to undertake so much difficult and expensive new work and to draw many new and sure to be contentious lines.

If the Court were anywhere near to making a decision like this, Justice Scalia would have grilled the state's lawyer. In fact, he asked an astounding total of zero questions. This oral argument was interesting in the way it shone a light on the inaccuracy of the concept of "one person, one vote" that we've taken as a stunningly correct precept for half a century. So be a tad less fuzzy-headedly idealistic and face reality. That's always a pretty decent idea.

And now, Scalia is gone and it's zero questions forever. But Scalia's vote was not needed, and the opinion the Court issued just now was unanimous. I haven't had the chance to read it yet, but as you can see from reading my old post, I was most interested in the possibility of using the Guarantee Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government." Justice Breyer brought it up at oral argument, suggesting that it could influence the meaning of the Equal Protection Clause with respect to "the kind of democracy where people, whether they choose to vote or whether they don't choose to vote, are going to receive a proportionate representation in Congress."

The opinion for the Court doesn't mention the Guarantee Clause or use the idea of "a republican form of government," but Justice Thomas, writing solo and concurring, has a lot to say about it. Excerpt: