Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 

Advertisements

What Happened at the Supreme Court Gerrymandering Argument

October 13, 2017

Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.


May 23, 2017

Justice Kennedy has added some suspense regarding the future of gerrymandering, and therefore the future of Republican domination of state and federal legislatures. For my discussion on The Hill.com, click on Will the Supreme Court Draw the Line on Gerrymandering.


The Court’s attack on the “ever-normal granary”

June 30, 2015

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.


Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


Our Stake in Each Other’s Welfare

October 8, 2013

Do we have a stake in each other’s future or only in our own? That is a central question of American politics. The Tea Party’s tossing of the entire American budget into the sea over the issue of Obamacare is an effort to say no, we have no stake in each other’s welfare. To claim a stake in each other’s welfare is socialism. Although the political waters warrant silence from many elected officials about it, that same cry has been leveled and is being leveled against other American efforts to help each other. Social security, socialism. Medicare and Medicaid, socialism. Indeed, there is no logical reason to draw the line there and many don’t. National parks, socialism. Veterans’ benefits, socialism. Head start, socialism. Why stop there? Public schools, socialism. Public hospitals, government health departments and laboratories, socialism. It’s all socialism in the heads of the true believers. So let me repeat that question – do we have a stake in each other’s future or only our own? Read the rest of this entry »


The Gay Marriage Cases

March 27, 2013

Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.

Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.

On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week. Read the rest of this entry »


%d bloggers like this: