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)):

"So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional."

Writes Alan Dershowitz, surprising me (and I taught the constitutional law relating to impeachment for many years). He writes:

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way:

"Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis."

Justice David Souter, a George H. W. Bush-appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon who challenged the procedure the Senate used to convict him. All of the Justices rejected Nixon's attempted appeal to the judiciary. The Souter and White opinions were concurring opinions. The majority opinion written by Chief Justice Rehnquist (and joined by Stevens, O'Connor, Scalia, Kennedy, and Thomas) stressed the "textually demonstrable commitment" of the issue to the Senate, which is given the "sole Power to try all Impeachments." (The House is given "the sole Power of Impeachment.") Even though that case was about a judge, the Court took into account the special need for finality that would exist in the case of a President:

"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:

"Supreme Court Hears Arguments on ‘One Person One Vote.'"

Adam Liptak reports.

The basic question in the case, Evenwel v. Abbott, No. 14-940, is who must be counted in drawing voting districts: all residents or just eligible voters?

The difference matters, because people who are not eligible to vote — children, immigrants here legally who are not citizens, unauthorized immigrants, people disenfranchised for committing felonies, prisoners — are not spread evenly across the country. With the exception of prisoners, they tend to be concentrated in urban areas.

So there are 2 theories of which people to count as population proportionate districts are drawn. Think it through: 1. Which party is advantaged by each theory? 2. Which approach is better as a matter of nonpartisan principle? (Does the chosen official represent those who voted for him or everyone in the district?) 3. Is each state free to pick either theory or does the constitutional right to equal protection require one (and which one!)?

Did your answer on question 1 drive your answers on questions 2 and 3? You might have gotten question 1 wrong, you know, so be careful! I think a lot of people have an instinctive answer to #1 that's wrong. I recommend checking your work with a pencil-and-paper diagram.

ADDED: Here's the transcript of the argument. I'm surprised to see Justice Breyer bring up what he refers to as the Republican Form of Government Clause (which is more commonly called the Guarantee Clause ("The United States shall guarantee to every State in this Union a Republican Form of Government")). For a long long time, that clause has been held nonjusticiable (i.e., not within the purview of the courts). But Breyer suggests that it should affect the meaning of Equal Protection, permitting an interpretation based on "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 lawyer trying to require the states to exclude noneligible voters from the calculation drew questions only from the liberal side of the Court. The state's Solicitor General stressed that the only question is whether the state is forbidden to use the whole population (which is what all the states currently do). On page 29, Justice Alito notes the difference between arguing that "total population figures are a good enough proxy for eligible voters" and arguing that "representational equality is the real basis, and therefore that's why you use population." The SG says he's not making either argument (because he wants it to be that the state is free to do it either way).

On page 31, we hear from Justice Kennedy: "Well, if the voter population is a permissible basis under the Constitution, I assume that's because there is ­­ is an ethical, a good government, a liberty interest in protecting these voters... Well, if in a case like this where there is a 45 percent deviation, something of that order, then why isn't Texas required at that point to recognize that these interests that are legitimate under the Constitution, which are voter based, should not be accommodated, and so that you should at least give some consideration to this disparity that you have among voters?" That is, at some point, the difference between the 2 approaches is so great that the usual reliance on total population may become an Equal Protection violation.

There's also argument from the United States taking the position that the state is not only permitted to district based on the whole population but it is also required to do so. "It would be very odd," the lawyer says, bolstering the state's argument, "for the Court to demand, as a constitutional standard, data that does not even have to be collected." But why is it not even permissible? Another way to look at that is: If it would be so incredibly difficult to do, no state will opt to try it, and the Court will never have to say whether it's permissible.

MORNING UPDATE: 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. 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.

UPDATE, April 4, 2016: The Court decides as predicted and unanimously.

"So to uphold direct democracy as a constitutionally permissible tool for regulating elections, the court had to conclude that, when the Constitution uses the term 'legislature'..."

"... it does not (in its original formulation) permit the popular election of senators but does permit popular regulation of the election process. There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide," writes lawprof Richard Pildes in a NYT op-ed about the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission.

[T]o uphold direct democracy as a constitutionally permissible tool for regulating elections, the court had to conclude that, when the Constitution uses the term “legislature,” it does not (in its original formulation) permit the popular election of senators but does permit popular regulation of the election process. There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide....

The main, and best, justification for direct democracy is precisely the need for this kind of check... on the self-interested temptations of power when legislators regulate the political process itself.... Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.

I haven't read the opinion yet, but I've long thought that direct democracy is unconstitutional, for reasons the Court disposes of in footnote 3:

The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Repub­lican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”).

I'll get back to you when I see how close anybody on the Supreme Court got to what I think is the answer. I hope this Pildes appetizer will tide you over.

The President, not the Congress, gets to decide whether a person born in Jerusalem can have his place of birth listed on his passport as Israel.

Here's the PDF of Zivotofsky v. Kerry, which just came out. There's a majority opinion, written by Justice Kennedy, with 5 votes. The Chief Justice writes a dissenting opinion, joined by Justice Alito. Justice Scalia has a dissenting opinion, joined by the Chief and Justice Alito. And Justice Thomas concurs in part and dissents in part.

Justice Kennedy uses the 3 categories from Justice Jackson's opinion in Youngstown. This is a category 3 case, where the President and Congress are in disagreement, but the President's position prevails when the court finds the President's power "exclusive" and "conclusive." That was the case here, Kennedy writes, where the issue is the formal recognition of a foreign sovereign, and Congress was trying to require the President to "issue a formal statement that contradicts the earlier recognition."

Should respect for the initiative process have moved the Supreme Court to stretch the restraints of the standing requirement?

Chief Justice Roberts, writing for the Supreme Court majority in Hollingsworth v. Perry, says:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

There was some argument that there needed to be a way for the results of the state's initiative process to be defended when the state's elected officials didn't like those results, as happened with Prop 8. The dissenting opinion said the majority "disrespects and disparages" this political safeguard that is part of California law. The Chief's answer was the state can have its law, but it doesn't have power to change the federal law of standing that limits federal courts.

[T]he fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.

The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.

In other words, separation of powers beats federalism. Not always, but here, where the separation of powers is a matter of federal constitutional law, and the federalism interests are only policy concerns.

The dissenting opinion is written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor:

The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.”...

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. 

Roberts's opinion acknowledges all that, but it's simply policy analysis, and federal standing doctrine has — for a long time — rejected arguments that come in the form of if these plaintiffs can't sue, an important legal issue cannot be raised.

I'm particularly unsympathetic to this argument in the context of needing to defend the results of the initiative process. Long ago, the Supreme Court had a case challenging the initiative process as a violation of the Article IV guarantee of a "Republican Form of Government" to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits of the question because of the so-called "political question" doctrine — which, like standing, is a justiciability doctrine about the power of the federal courts.

It would be ironic if reverence for the initiative leveraged these plaintiffs past the normal limits on judicial power, since it was a limit on judicial power that prevented us from ever finding out whether lawmaking by initiative — rather than in a deliberative body of elected representatives — is unconstitutional.

Justice Kennedy ends his dissenting opinion saying:

The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. 

That's interesting political philosophy about democracy, but the people also made the federal Constitution, which is superior to state law, and which has that guarantee of a republican form of government. So let's not get too sentimental about direct democracy. If we want to get back to first principles, let's talk about republicanism.

(Here's Erwin Chemerinsky's article "Why Cases Under the Guarantee Clause Should Be Justiciable," which was part of a symposium at the University of Colorado Law School in 1994, back when there was a challenge to an initiative in Colorado that barred laws protecting gay people from discrimination. I was there too and wrote a response to Prof. Chemerinsky — here's my "Time for the Federal Courts to Enforce the Guarantee Clause?" — saying that if the Supreme Court felt motivated enough about this challenge, before it would change the justiability law about the Guarantee Clause, it would find the right it needed in the Equal Protection Clause. And that, by the way, is exactly what the Court proceeded to do, in Romer v. Evans — a case written by, of all people, Justice Kennedy.)

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. 

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....

Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.

So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

"The Case Against Referendums: From Greece to California, They Always End Up Undermining Democracy."

David Bell in TNR:

Modern states are far too large and complex for direct democracy. Since it would be hugely impractical for the people, as a whole, to decide on everything from the size of foreign aid budgets to new environmental regulations, they delegate the business of government to elected representatives....

[I]n practice bodies of elected representatives so often seem to devolve into corrupt, complacent and long-lasting oligarchies. Anger at the shenanigans of the political class has helped keep the old suspicions alive right down to the present day, and has led, in democracies across the world, to countless institutional schemes designed to keep elected representatives in check: “imperative mandates” (detailed orders for how to vote in parliament, drawn up and approved by constituents); term limits; making the job part-time; judicial oversight; etc. The single most popular such scheme, however, has been the referendum....

[But referendums] take relatively technical issues away from legislators who have the time and expertise to deal with them, and give them to voters who do not....

[Referendums] tie the hands of legislators in potentially destructive ways....

[R]eferendums tarnish the legitimacy of legislators by subjecting their work to direct popular veto, and therefore casting it as a less genuine expression of popular sovereignty—despite the fact that the routine functioning of a democratic constitution is the most important expression of this sovereignty.

By the way, the U.S. Constitution prescribes the specific method for legislating and amending the Constitution, and that excludes the referendum as a check on Congress, but there is also an argument that the state-level referendums violate the U.S. Constitution. In 1912, the U.S. Supreme Court announced that it was not the proper role of the courts to give an answer to that particular question of law, and referendums have continued ever since. What a missed opportunity!

"Were I representing Arizona, I’d argue that the federal government is in default on its 'protection against invasion' responsibility, and that this empowers the state to resort to self-help."

Says Glenn Reynolds, citing Article IV, Section 4 of the U.S. Constitution. ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.")

Not sure how that would play out, but it would make an interesting law review article. And a fun oral argument.

I'm pretty sure how it would play out. The courts would apply the political question doctrine and say that Article IV, Section 4 is a "textually demonstrable commitment" of the question to Congress and the Executive. It is for them and not the courts to say what constitutes an "invasion" and what protection is warranted. Even though it would not be a lawsuit against the federal government, attempting to get a court to compel it to act — it would only be a justification of the state's acting in its own defense — the courts would refuse to interpret and apply that provision of the Constitution.

UPDATE: Glenn fights back on the political question doctrine. He connects Article IV, Section 4 to Article I Sec. 10. ("No State shall... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.")

Arizona is not — yet, anyway — engaging in war, but it’s clear from this language that it’s constitutionally empowered to do so when invaded, even if the federal government does nothing (and perhaps even in the face of federal objection). Arizona’s legislation is passed in response to armed people coming across the border and killing Arizonans, which sounds rather like an invasion. If that’s the case, then lesser responses to invasion are, arguably, permissible as well in the face of federal inaction. What the courts will do with this is, of course, uncertain (and likely not tied very closely to the actual text of the Constitution!) but it’s certainly not a frivolous argument.

An immediate military response to a sudden invasion that "will not admit of delay" is clearly distinguishable from the long influx of migrants to which the state has responded with a stringent policy of requiring and checking papers and deporting people. Arizona has adopted its own immigration policy, because it doesn't like the policy the federal government is following. But the federal government has complete power over immigration. This "invasion" concept is offered as a work-around to that power.

I think that if the Arizona policy were challenged and Arizona argued it had suffered an invasion that the feds wouldn't deflect, that the courts would say: It's not for us to decide what constitutes an "invasion." Congress and the Executive have already made their decision about that, and the Constitution makes that the final answer. As they say in political question doctrine talk, there's "the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government... an unusual need for unquestioning adherence to a political decision already made... [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

At that point, the court would be back at the original barrier to the state's law: the exclusive federal power over immigration.

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.

The Senate has the power to exclude Roland Burris, say lawprofs Akhil Reed Amar and Josh Chafetz.

They look at Article I, Section 5 of the Constitution — which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members" — and find a power to judge the Blagojevich appointment:

At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.

Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.

Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.

But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.

To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?

In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.

If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:

To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.

The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

ADDED: Lawprof Sandy Levinson puts it well:

I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....

Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

That Texas redistricting case.

Here's Linda Greenhouse's report on the Texas redistricting case:

With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions..., rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.

That's half of the reason why I did not read and summarize the case for you when it came out yesterday. It's not just that the case is long and fractured. It's that it fails to do anything to clear up the utterly confused standard to be applied in claims of unconstitutional gerrymandering and adds nothing new to the analysis of whether courts should entirely refuse to entertain such claims (by applying the so-called "political question doctrine"). I note that the two new Justices offer nothing new. Here's Chief Justice Roberts, joined by Justice Alito:

... I agree with the determination that appellants have not provided “a reliable standard for identifying unconstitutional political gerrymanders.” The question whether any such standard exists — that is, whether a challenge to a political gerrymander presents a justiciable case or controversy—has not been argued in these cases. I therefore take no position on that question, which has divided the Court, see Vieth v. Jubelirer, 541 U. S. 267 (2004)...

I'll be interested when they do take a position on this issue (which I tormented my students with on the last conlaw exam). Roberts and Alito replaced two Justices who agreed with Thomas and Scalia that political gerrymandering is not justiciable, and Justice Kennedy is holding down a middle position that is keeping the law in this area exceedingly unclear. The outcome in the new case is important, and it affects significant political interests. But as an expression of law it is highly unsatisfying.

Three signs.

Today started out lively with a two-hour class about the political question doctrine--with a room assignment screw-up to cut the seriousness of it all at midpoint. Then things got dreary as I spent the next three hours looking for some old letters that could either be in any one of the many places in my office where I engage in my real world paper filing practices (piling things on horizontal surfaces) or in one of the several computers in my office. I did find some of what I was looking for and got two side benefits: 1. my office became incredibly neat, and 2. our tech guy hooked my second-newest desktop unit, whose monitor had died, to my newest desktop. It's now easy to reach back into the documents and emails of the years 1999-2002 that didn't seem important enough to transfer to my newest computer when I first set it up. It's a little like going up into the attic and rooting around in the papers up there.

(Actually, I haven't gone into my attic in many years, even though all it takes is opening a door and walking up an ordinary staircase. I used to find a bat flying around my house from time to time. The insane hijinks that took place when we used to try to capture one of these creatures would take several pages to describe. Let's just say rabies shots were involved! Finally, I had a bat guy--a bat man--out to the house to solve the problem, which he did. I came to understand that the attic was the source of the problem, and I haven't gone up there since, even though there aren't any bats up there anymore.)

But the point is: I haven't found today very conducive to blogging, so let me photoblog. Here are three signs: a paper poster (for Cinematheque--the UW's film series), a classic neon bar sign, and a nice example of the home-style painted-on type.

The semester has ended. It's a beautiful day and the last class is over. Time now to write exams and tie up all the many loose ends and do all the errands that I've been putting off (like having the oil changed in my car). But first, I'll take a walk down State Street, perhaps capturing some photos of Madison happenings. I'm going to make my way to a restaurant, where I plan to read the new Supreme Court case about political gerrymandering. (Ah, a new Supreme Court case on the political question doctrine comes out just as it is too late to talk about it in Conlaw 1!) Then I mean to go to a café and do a little photoblogging (if, in fact, Madison happenings were captured) and a little blawging (if I can extract a distinctive thing to say about the Justice Scalia/Justice Kennedy stand-off that left us with only a plurality opinion about the political question doctrine). So do come back. I'd like to also listen to the oral argument in the Cheney case, the one that bored all the reporters because there was too much talk about federal jurisdiction, but that will take a little time. There are also the arguments about habeas corpus in the Padilla and Hamdi cases to listen to. I almost regret that the Federal Jurisdiction and Conlaw 1 classes have already ended, just as so many interesting things are happening in the Supreme Court. Yet something tells me that this close to exams, students are not inclined to find anything "interesting," just burdensome. The lot of being a lawprof is often a matter of becoming immensely interested in things students are sorry to find out they need to slog through at all. But there are always some students who really do see what is interesting and important inside the arcana of jurisdiction and federalism and separation of powers. (If only when reading admissions files I could figure out who's who!)