Our "conservative" Supreme Court has decided that —protecting constitutional democracy is not its job

© 2019 Peter Free

 

28 June 2019

 

 

What follows is not an off-the-cuff legal impression

 

I'm an attorney experienced in state and federal Constitutional matters.

 

What the "conservative" majority did in Rucho v. Common Cause — putting forward the opinion that the Court is helpless to oppose ridiculous levels of vote-repressing political gerrymandering — is unconscionable.

 

This one decision — by itself — and not counting all the other obviously idiotic and partisan opinions this Court has come up with throughout history — is enough to obviate any reason (at all) to have a federal "supreme" court in the United States.

 

 

Gerrymander to your hearts' delight . . .

 

. . . we're too pitifully incompetent (and partisan) a crew to do anything about it?

 

That's the result of the Supreme Court's Rucho v. Common Cause.

 

Even after admitting that Democrats and Republicans — in the two gerrymandering cases being examined — had grossly deprived the competing political party of influence, Chief Justice Roberts airily opined that:

 

 

Our conclusion does not condone excessive partisan gerrymandering.

 

[But] there is no “Fair Districts Amendment” to the Federal Constitution.

 

Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.

 

[T]he Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.

 

But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.

 

Rucho v. Common Cause 588 US __ (2019) (at page 33)

 

 

This opinion might make sense to the legally uninitiated, until one reads Justice Kagan's dissent.

 

 

Kagan's dissenting opinion — destroyed Roberts' disingenuous BS

 

She made the points that:

 

 

the gerrymanders in question were constitutionally egregious

 

and

 

assisted by modern technology and statistical investigation, two lower courts found them to be so

 

furthermore

 

the legal questions (and judicial tests required to solve them) are everyday judge stuff —

 

therefore

 

the Supreme Court's majority's opinion disclaiming responsibility (and ability) for upholding the lower court decisions — runs directly counter to what the lower courts had already demonstrated was possible.

 

 

Quoted at length — to preserve its majority-obliterating logic

 

Justice Kagan wrote that:

 

 

The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes . . . that gerrymandering is “incompatible with democratic principles.”

 

The Fourteenth Amendment, we long ago recognized, “guarantees the opportunity for equal participation by all voters in the election” of legislators.

 

And that opportunity “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”

 

[P]artisan gerrymandering implicates the First Amendment too. That Amendment gives its greatest protection to political beliefs, speech, and association.

 

Yet partisan gerrymanders subject certain voters to “disfavored treatment”—again, counting their votes for less— precisely because of “their voting history [and] their expression of political views.”

 

So the only way to understand the majority’s opinion is as follows:

 

In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy.

 

For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

 

The majority gives two reasons for thinking that the adjudication of partisan gerrymandering claims is beyond judicial capabilities.

 

[T]he majority says, it cannot find a neutral baseline—one not based on contestable notions of political fairness—from which to measure injury.

 

No “discernible and manageable” standard is available, the majority claims—and so courts could willy-nilly become embroiled in fixing every districting plan.

 

But in throwing up its hands, the majority misses something under its nose:

 

What it says can’t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims . . . .

 

[B]oth courts . . . used basically the same three-part test to decide whether the plaintiffs had made out a vote dilution claim.

 

As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation.

 

Turn now to the test’s application.

 

First, did the North Carolina and Maryland districters have the predominant purpose of entrenching their own party in power?

 

Here, the two District Courts catalogued the overwhelming direct evidence that they did.

 

The majority does not contest the lower courts’ findings; how could it?

 

Instead, the majority says that state officials’ intent to entrench their party in power is perfectly “permissible,” even when it is the predominant factor in drawing district lines.

 

But that is wrong.

 

Consider again Justice Kennedy’s hypothetical of mapmakers who set out to maximally burden (i.e., make count for as little as possible) the votes going to a rival party.

 

Does the majority really think that goal is permissible?

 

It cannot be permissible and thus irrelevant, as the majority claims, that state officials have as their purpose the kind of grotesquely gerrymandered map that, according to all this Court has ever said, violates the Constitution.

 

On to the second step of the analysis, where the plaintiffs must prove that the districting plan substantially dilutes their votes . . . . [t]he majority fails to discuss most of the evidence the District Courts relied on to find that the plaintiffs had done so.

 

But that evidence—particularly from North Carolina—is the key to understanding both the problem these cases present and the solution to it they offer. The evidence reveals just how bad the two gerrymanders were . . . .

 

And it shows how the same technologies and data that today facilitate extreme partisan gerrymanders also enable courts to discover them, by exposing just how much they dilute votes.

 

Suppose we now have 1,000 maps, each with a partisan outcome attached to it. We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other.

 

We can then find the median outcome—that is, the outcome smack dab in the

center—in a world with no partisan manipulation. And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails?

 

The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.

 

Using that approach, the North Carolina plaintiffs offered a boatload of alternative districting plans—all showing that the State’s map was an out-out-out-outlier.

 

Every single one of the 3,000 maps would have produced at least one more Democratic House Member than the State’s actual map, and 77% would have elected three or four more.

 

The majority claims all these findings are mere “prognostications” about the future, in which no one “can have any confidence.”

 

But the courts below did not gaze into crystal balls, as the majority tries to suggest. Their findings about these gerrymanders’ effects on voters—both in the past and predictably in the future—were evidence-based, data-based, statistics-based.

 

By substantially diluting the votes of citizens favoring their rivals, the politicians of one party had succeeded in entrenching themselves in office. They had beat democracy.

 

The majority’s broadest claim, as I’ve noted, is that this is a price we must pay because judicial oversight of partisan gerrymandering cannot be “politically neutral” or “manageable.”

 

Contrary to the majority’s suggestion, the District Courts did not have to—and in fact did not—choose among competing visions of electoral fairness.

 

That is because they did not try to compare the State’s actual map to an “ideally fair” one (whether based on proportional representation or some other criterion).

 

Instead, they looked at the difference between what the State did and what the State would have done if politicians hadn’t been intent on partisan gain.

 

Still more, the courts’ analyses used the State’s own criteria for electoral fairness—except for naked partisan gain.

 

All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office.

 

The point is that the assemblage of maps, reflecting the characteristics and judgments of the State itself, creates a neutral baseline from which to assess whether partisanship has run amok.

 

Extreme outlier as to what?

 

As to the other maps the State could have produced given its unique political geography and its chosen districting criteria. Not as to the maps a judge, with his own view of electoral fairness, could have dreamed up.

 

 What would have happened, given the State’s natural political geography and chosen districting criteria, had officials not indulged in partisan manipulation? And that is what the District Court in Maryland inquired into.

 

The court did not strike down the new Sixth District because a judicial ideal of proportional representation commanded another Republican seat. It invalidated that district because the quest for partisan gain made the State override its own political geography and districting criteria.

 

So much, then, for the impossibility of neutrality.

 

According to the majority, “it does not make sense to use” a State’s own (non-partisan) districting criteria as the baseline from which to measure partisan gerrymandering because those criteria “will vary from State to State and year to year.”

 

But that is a virtue, not a vice—a feature, not a bug.

 

Using the criteria the State itself has chosen at the relevant time prevents any judicial predilections from affecting the analysis—exactly what the majority claims it wants.

 

At the same time, using those criteria enables a court to measure just what it should: themextent to which the pursuit of partisan advantage—by these legislators at this moment—has distorted the State’s districting decisions.

 

Sure, different non-partisan criteria could result, as the majority notes, in different partisan distributions to serve as the baseline.

 

But that in itself raises no issue:

 

Everyone agrees that state officials using non-partisan criteria (e.g., must counties be kept together? should districts be compact?) have wide latitude in districting.

 

The problem arises only when legislators or mapmakers substantially deviate from the baseline distribution by manipulating district lines for partisan gain.

 

So once again, the majority’s analysis falters because it equates the demand to eliminate partisan gerrymandering with a demand for a single partisan distribution—the one reflecting proportional representation.

 

But those two demands are different, and only the former is at issue here.

 

The majority’s “how much is too much” critique fares no better than its neutrality argument.

 

How about the following for a first-cut answer: This much is too much.

 

By any measure, a map that produces a greater partisan skew than any of 3,000 randomly generated maps (all with the State’s political geography and districting criteria built in) reflects “too much” partisanship.

 

Think about what I just said:

 

The absolute worst of 3,001 possible maps. The only one that could produce a 10–3 partisan split even as Republicans got a bare majority of the statewide vote.

 

And again: How much is too much?

 

This much is too much: A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of a district from 47% Republicans and 36% Democrats to 33% Republicans and 42% Democrats. A map that in 2011 was responsible for the largest partisan swing of a congressional district in the country.

 

And if the majority thought that approach too case specific, it could have used the lower courts’ general standard—focusing on “predominant” purpose and “substantial” effects—without fear of indeterminacy.

 

I do not take even the majority to claim that courts are incapable of investigating whether legislators mainly intended to seek partisan advantage.

 

Although purpose inquiries carry certain hazards (which courts must attend to), they are a common form of analysis in constitutional cases.

 

Those inquiries would be no harder here than in other contexts.

 

Nor is there any reason to doubt, as the majority does, the competence of courts to determine whether a district map “substantially” dilutes the votes of a rival party’s supporters from the everything-but-partisanship baseline described above.

 

As this Court recently noted, “the law is full of instances” where a judge’s decision rests on “estimating rightly . . . some matter of degree”—including the “substantial[ity]” of risk or harm.

 

The majority is wrong to think that these laws typically (let alone uniformly) further “confine[] and guide[]” judicial decision making.

 

They do not, either in themselves or through “statutory context.”

 

To the extent additional guidance has developed over the years (as under the Sherman Act), courts themselves have been its author—as they could be in this context too.

 

And contrary to the majority’s suggestion, courts all the time make judgments about the substantiality of harm without reducing them to particular percentages.

 

If courts are no longer competent to do so, they will have to relinquish, well, substantial portions of their docket.

 

The majority . . . [concludes] its opinion with a paean to congressional bills limiting partisan gerrymanders.

 

The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

 

No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other nonpartisan actors.

 

Some Members of the majority, of course, once thought such initiatives unconstitutional.

 

But put that aside.

 

Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do).

 

And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail.

 

Look at Missouri. There, the majority touts a voter approved proposal to turn districting over to a state demographer.

 

But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change.

 

The majority’s most perplexing “solution” is to look to state courts.

 

But what do those courts know that this Court does not?

 

If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?

 

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government.

 

Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.

 

Rucho v. Common Cause 588 US __ (2019) (Kagan dissent at pages 8-33)

 

 

The moral? — Rucho v. Common Cause persuasively demonstrates the Court's fundamental illegitimacy

 

. . . even according to the extremely loose professional legal standards that it historically has arrogated to itself.

 

The Court's long-standing "conservative" majority has no interest (whatsoever) in preserving the supposed democracy that the Founders allegedly put in place.

 

This Grand Irony arriving now, despite the Court's own Marbury v. Madison claim to being responsible for exactly that.

 

Such a fundamentally oligarchical legal institution should not exist in the United States. Which, presumably, is why the Founders did not themselves accord it legal supremacy.