Live blog of opinions | June 27, 2019
We live-blogged as the Supreme Court released its final opinions of the term: Mitchell v. Wisconsin, Rucho v. Common Cause, Lamone v. Benisek and Department of Commerce v. New York. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
3rd & 7 37yd
3rd & 7 37yd
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From the end of the majority opinion: "No one can accuse this Court of having a crabbed view of the reach of its competence. 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."
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In dissent, Justice Kagan emphasizes the importance of the issue: "the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people."That is strong language, particularly from Justice Kagan.
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Toward the end of the opinion, Roberts acknowledges that "excessive partisanship in districting leads to results that reasonably seem unjust." But that does not mean, he says, that "the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."
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Justice Kagan, calling out the majority: "I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” "
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But, he points out, the states are addressing the issue, and Congress has the power to do something about partisan gerrymandering. "We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open."
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Many commenters are pointing out the circularity of relying on politics to rein in this kind of political abuse. That critique makes a lot of sense, of course. But sometimes that circularity does break down. I would not be surprised to see the political salience of gerrymandering continue to rise as a political issue in future cycles, and become a winning issue for politicians advocating a fix for it. Whether that ever does enough to become a serious fix remains a question. As it's etymology suggests, this is an old problem.
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Justice Kagan's closing paragraph: "Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. "
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For constitutional law and theory nerds, today's disputes recommend reading John Hart Ely's famous book "Democracy and Distrust." The argument is that cases protecting the fairness of the political process and protecting minorities is where judges should be most sensitive to the rights involved.
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To those asking about Roberts and the Arizona case.
The Arizona issue was that the ballot initiative took the map drawing power completely away from the legislature and gave it to a commission of non legislators. He would be fine with ballot initiatives/laws that simply directed the legislature how to act without taking away their map drawing powers completely -
Several questions about why Kagan seems to think that state courts can't deal with this effectively. It's not clear she thinks that -- in fact, she points to the PA Supreme Court's handling of these issues. But in some States, members of the judiciary are elected, presumably based on the same gerrymandered maps that would be challenged. Hard to know whether that would affect their views on the manner in which those maps were drawn.
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As the Florida amendment on felon voting rights showed last election cycle, there is often a lot of popular support for neutral principles of voting rights, even when they are politically loaded. I would expect a lot of efforts to get anti-gerrymandering amendments on to state referendums and ballot initiatives in coming years.