Monday, July 22, 2019

SCOTUS Says No To Politics-On 3Quarks

By Michael Liss

The Supreme Court doesn’t play politics.

In what was destined to be an inevitable ruling, by an inevitable 5-4 vote, inevitably written by Chief Justice John Roberts, the Supreme Court decided, in Rucho v. Common Cause, that it couldn’t decide how much “partisan” gerrymandering was too much partisan gerrymandering. So it wouldn’t. Case closed.

Rucho is an extraordinary decision, with the potential, over the next 10 years, to change fundamentally the way we experience democracy. That may seem to be a radical statement, but it is absolutely true: Political parties now have a virtually free hand, once they obtain control over a state government, to redistrict as they see fit in order to retain that control. The Supreme Court is not completely out of the game—Roberts did acknowledge that they might still review gerrymandering based on race, or on “one-person, one-vote” grounds, but, by order of the Chief Justice, the Courts will be closed for a permanent federal holiday if the gerrymandering was done for the purpose of political gain.

This is an earthquake, which will, no doubt, lead to a further arms race between the parties. As Republicans control more states (Kyle Kondik, writing for Larry Sabato’s Crystal Ball, cites research indicating that Republicans control redistricting for 179 Congressional Districts, Democrats only 49), the advantage will be theirs. Many critics on the Left are suggesting that the conservative majority on the Court chose this path for precisely this reason. I prefer not to be cynical. Rather, I just want to point out the obvious: The real losers will be the center of the electorate; mainstream, moderate voters who find their concerns completely ignored because the more “safe seats” there are, the more influence primary voters (who tend to be far more doctrinaire) will have. This will inevitably lead to more radicalized government answerable to fewer and fewer people, and even more alienation.

Whether Chief Justice Roberts, or anyone in the majority, took any of that into account, we will never know. Supreme Court Justices don’t go on the Sunday talkies to explain themselves. Rather, they are a bit like magicians, deciding how much to let the audience in on the trick, occasionally revealing a nugget or two through pointed questions in oral argument and in colorful concurrences and dissents.

As to what inside baseball occurred, we can only speculate. Chief Justices, particularly Roberts, are very sensitive to the overall reputation of the Court. They like winning, but would prefer not to have serial 5-4 decisions on matters that are seen by the public as controversial. In a case that could go either way, there is not only bidding to get the swing-vote Justice, but also to convince the “gettable noes” to say yes, and add legitimacy. These lead to more moderate, narrower decisions in keeping with a traditional preference for judicial restraint. Read the recent holding in American Legion v. American Humanist Association (the Bladensburg Peace Cross case) to see how a 7-2 margin can be stitched together.

But in Rucho, there’s Roberts, there’s Justice Kagan in dissent, and nothing further. That may be very revealing; it is altogether possible that both sides knew the score before the briefs were even read (meaning, no bidding for a “centrist” because there were no centrists). If that was true, the only bidding at all was among the majority. The decision, however, is maximalist—get past Roberts’ genteel language, and there couldn’t have been a greater gift to election-fixers everywhere. I suspect that the rest of the conservative majority decided they didn’t need to gild the lily, as they got exactly what they wanted.

Roberts relies on something that is indisputable; gerrymandering is as old as the Republic (the distinguished gentleman to the right is the Elbridge Gerry, who, among his other accomplishments, also managed to sign the Declaration of Independence and be James Madison’s Vice President). But what Roberts doesn’t say (and Kagan highlighted this omission) was that this wasn’t your Founders’ gerrymandering anymore. The good old days of fussing with one boundary line or two are mostly over. Maps are now data-driven down to the neighborhood and street level to create the maximum return. Techniques like “packing” (cramming as many Democrats or Republicans into one district to reduce their influence in the general region) and “cracking” (spreading out the opposition party’s voters across several districts to dilute them down to minority status in all) have become ever more sophisticated, and the more concentrated one party’s support in a particular region, the more vulnerable they are to being marginalized state-wide.

The epochal beating Democrats took in the 2010 midterms included a rout at the State level, and lined up perfectly in time with the redistricting mandated by the 2010 Census. State after state re-drew every line they could, and some of the most aggressive efforts were with newly installed majorities that saw an opportunity to take up the drawbridge and fill the moat with alligators.

The Supreme Court had largely avoided ruling on partisan gerrymandering, but now the number of potential plaintiffs with facially good cases exploded. It was just a matter of time before SCOTUS would have to take a position. What’s more, a new and troubling trend for the conservative majority was emerging: Federal judges in the lower courts were actually making decisions reversing partisan gerrymandering, ordering the redrawing of maps, or delaying the adoption of new ones.

In January 2019, the Supreme Court granted certiorari for two, Lamone v. Benisek, a Republican complaint about Maryland’s 6th Congressional District, which was clearly gerrymandered by a Democratic Maryland General Assembly after the 2010 Census to make it more Democratic, and Rucho, a Democratic complaint about Republican North Carolina’s whole-state redistricting, which took a 50/50 aggregate Congressional popular vote result and turned it into a 10/3 GOP advantage. The cases were consolidated, and oral arguments were held in March 2019. With the addition of Justice Kavanaugh, it was fairly obvious the Chief Justice would provide the deciding vote, so the betting shifted to where he might end up on the spectrum.

I have probably used some variation of the phrase “in fairness to Roberts” or “I have a great deal of respect for Roberts” countless times, including in these pages. So, in fairness to the Chief Justice, for whom I have a great deal of respect, let’s acknowledge, again, that these aren’t easy cases, and the federal courts really shouldn’t be used to litigate absolutely every redistricting at every level of government. That being said, the decision, read closely, examined for its real-world impact, and its potential for nearly infinite SCOTUS-sanctioned mischief, makes even Charles Fried, President Reagan’s former Solicitor General, shake in anger. When the Chief Justice wants to lay waste to something, he’s capable of doing it politely, thoroughly, and ruthlessly.

Of partisan gerrymandering, Roberts says, not only was there “nothing new,” but nothing in the historical record to indicate that the drafters of the Constitution wished to give the Judiciary oversight (this is a very selective reading of the Founder’s intent, because the Federalist Papers abound with concerns about factions and abusive majorities). As to history, Roberts concedes that the Courts have involved themselves in various aspects of voting, redistricting claims, racially motivated gerrymandering, and one-person, one-vote, but partisan gerrymandering is different, because only partisan gerrymandering is “political.” Congress plays politics, the state legislatures play politics, but SCOTUS doesn’t play politics. That would be wrong. Partisan gerrymandering is therefore nonjusticiable.

I suspect that Justice Kagan must have ground her teeth a bit on that one. Roberts’ reasoning essentially boiled down to the premise that the Supreme Court was incapable of deciding how much politics was too much politics. Even if SCOTUS felt a result was unfair (and Roberts acknowledges that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust”), that didn’t mean it was empowered to set a “clear, manageable and politically neutral” standard that would be understood by all. Further, if it were to get involved in oversight of these types of cases, the application of that impossible-to-determine standard would also have to be “limited and precise” so the Courts would not be embroiled in every dispute. This, Roberts concluded, SCOTUS could not do. In sum, the Supreme Court can’t make fine distinctions, doesn’t play politics, and because it’s really busy, Justice Roberts has decreed that it shouldn’t be involved at all.

And the Chief Justice wasn’t done with voting rights. He also assayed the idea of one-person, one-vote, which he said could still be litigated, but was broadly misunderstood. The public mistakes one-person, one-vote for proportional representation. But ours is a winner-take-all system, and no particular level of voting success must be reflected in the partisan composition of elected officials. So, a state that is split evenly between Democrats and Republicans could still have a vastly disproportionate partisan breakdown of its Congressional delegation (and/or in its state legislature). “Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation….”

That is a clever elide, but doesn’t address the key point. We aren’t talking about making sure that a state that is 25% Democratic allocates 25% of its offices to them. We are talking about potential majorities being shut out of power (see Wisconsin State Assembly elections of 2018, where Republicans retained 63 of 99 seats even though they received less than 45% of the vote). Yet Roberts makes it, and I suspect it’s a predicate for a second killshot to most future one-person, one-vote and perhaps even racially-motivated gerrymandering claims.

So, where do those aggrieved voters go for redress? Roberts sends them (literally, at times) to the same polling places in which they previously voted, to elect the same representatives at the state and federal level as previously marginalized them. In an extended comment, he notes with approval (while not endorsing) a number of initiatives done at the state level. He also cites the federal “Fairness and Independence in Redistricting Act,” which was introduced in 2005, has been reintroduced in every Congress since (failing constantly), and is chock-a-block with concepts, like requiring every state to establish an independent commission to adopt redistricting plans, and setting forth criteria for those commissions to use, such as compactness, contiguity, and population equality.

Roberts is all for the idea of these ideas, if not for the substance of them (he opposed a non-partisan commission in Arizona State Legislature v. Arizona Independent Redistricting Commission, but let’s not quibble). Ideas show those laboratories of democracy, the states, are working it all out on their own. Of course, he leaves out the one essential: The places where these reforms are actually taking place are likely the ones not engaged in the most egregious forms of gerrymandering. For those enjoying the spoils of power and incumbency, sardonic laughter must have greeted a reading of Roberts’ words.

Justice Kagan didn’t share in the glee, and you can almost hear the gargle. In the coded behavior and language of the Supreme Court, one reads a dissent from the bench when one is unhappy, and “respectfully dissents” (except, occasionally, Justice Scalia, who, when especially aggrieved, would leave out the “respectfully” part). Justice Kagan both read and added “With respect but deep sadness, I dissent.”

“[P]artisan gerrymanders in these cases,” she wrote, “deprived citizens of the most fundamental of their constitutional rights” and “debased and dishonored our democracy.”

With that as background, you can understand her outrage at Roberts’ claim that the whole area is just too complex and cumbersome for the Supreme Court to handle. First of all, several cases, including the two that SCOTUS was in the process of deciding, were, in fact, the products of careful analyses by federal judges, developing the very type of standards Roberts said SCOTUS was incapable of. Perhaps none of those included the precise framework that the Supreme Court would be ready to adopt, but they certainly had intellectual integrity. Not good enough: “For the first time in this Nation’s history, the majority declares 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.”

Of course, what Justice Kagan thinks, or Charles Fried thinks, or even a majority of voters dominated by an artificially entrenched minority might think, doesn’t matter. Both the Maryland and North Carolina cases were sent back to the lower courts, with instructions to dismiss them. Two other matters, in Ohio and Michigan, had been previously delayed by the Justices until Rucho was decided. Those are probably dead as well.

Maybe Chief Justice Roberts is right: Congress, state legislatures, and the people should decide on “political” things like elections, and the Supreme Court should stay totally out of it. The problem with that claim is it seems somewhat incongruous in light of recent history, where the conservative majority demonstrated a little less reticence in placing a Judicial thumb on the scales. In Citizens United, the Supreme Court invalidated federal laws to restrict corporate campaign spending and influence-buying. In McCutcheon v. Federal Election Commission, Justice Roberts further leapt to the defense of cash and its application to the First Amendment while allowing,“[t]he line between quid pro quo corruption and general influence may seem vague at times.” In Shelby, his respect for legislative action took a breather as he eviscerated the Voting Rights Act, first passed in 1965, and overwhelmingly reenacted by Congress several times over the past half century. Finally, in Janus v. AFSCME, Justice Alito authored a decision that overturned a 40-year-old precedent when it managed to see speech by public sector unions as somehow not as free as corporate speech—a “non-political” decision specifically hailed by President Trump as a blow to Democrats.

I am sure I can find a good Originalist to explain to me that these are all consistent. But I’ll save them the parsing and distinguishing and just concede the point:

When it comes to partisan gerrymandering, the Supreme Court doesn’t play politics.

SCOTUS Says No To Politics first appeared on ob July 22, 2019 and can be found there

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Monday, June 24, 2019

Your Rights, Part III, Establishment Clause Edition-On 3Q

It is a big cross. A really big cross. Forty feet in height, made of granite and concrete, The Bladensburg Peace Cross stands tall and straight for all to see.
The Peace Cross, sponsored by the American Legion, was built in 1925 in the aftermath of World War I to memorialize the sacrifice of 49 Prince George’s County servicemen. It was paid for by the Legion, and by subscription of local residents and businesses. In 1961, maintenance of it was passed to the Maryland-National Capital Park and Planning Commission, and the land it currently stands on is State land, in a traffic median, the cost of maintenance paid for by the taxpayers of Maryland.
If you are just a little bit attuned to the First Amendment (religion portion), you might be interested in how that last part meshes with “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
It is a perceptive question, one that the Supreme Court grappled with and decided this last Thursday in American Legion v. American Humanist Association. The Peace Cross, they ruled in a 7-2 decision, may continue to stand on public land and be paid for with public funds.

This is the kind of wonky, incredibly subjective ruling that makes my heart go pitter-patter. I’m not sure I agree (or disagree) with the result, but I love the tortured efforts of most of the Justices to do the best they could under difficult circumstances. This is not an easy one.

How much government is too much government when it comes to religion? For most of us, the best we can do is apply a test analogous to the famous Justice Potter Stewart test for obscenity: “I know it when I see it.” Of course, the relevant word in there seems to be “I,” but, as a matter of law, there must be some standards.
In Lemon v. Kurtzman (1973), the Supreme Court made a credible effort to provide guidelines. A law or practice is constitutional if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

Conservatives hate the Lemon test (and several, in their Opinions in American Legion, express that dislike pungently). It puts them at the disadvantage of constantly have to explain why what’s obviously religious somehow doesn’t violate the Lemon rules. Judges, even Supreme Court Justices, like to appear thoughtful, tempered, with their rulings springing from eternal, incontrovertible laws, and not just clever advocates who managed to “win” a case.

American Legion exposes this problem, in part because the Cross is so obtrusively and permanently visual. This is not some charming Christmas montage mounted for a couple of weeks outside a Currier and Ives Town Hall, and it’s not even comparable to the religious prayers offered in public meetings in the Court’s nose-blind decision in 2014’s Town of Greece vs. Galloway. It’s a big, permanent, highly visible, primary symbol of a religion. You just cannot miss it.

The ruling was 7-2 in favor of permitting the Peace Cross to remain undisturbed, with 2 of the “Liberal” justices, Breyer and Kagan, joining the conservative majority, and Justices Ginsburg and Sotomayor in dissent. But read the opinions and dissents, and what you really see is a battle of rationalizations in the face of two incontrovertible (to my mind) facts: The monument has been there for 94 years (58 on public land), and IT’S A REALLY BIG CROSS. 

Justice Alito, in his Opinion, took the 94 years as his central organizing point: “The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent.” To Alito’s way of thinking, the symbol of the cross in general has taken on an additional secular meaning, particularly in the design of memorials and monuments, where religious symbols to honor the dead would be expected and considered appropriate. As to the Lemon Test, Alito thought it was both inapplicable and of no value in this context, since it failed to take into account the age of those symbols and monuments, making it harder to discern the original motivations of those who built them. If Alito’s Opinion is actually new law, then it abolishes the test’s application to “established, religiously expressive monuments, symbols, and practices.” Put another way, if it’s old enough, “what’s there is there.”

There is a logic to Alito’s position when he reaches this point (Justice Breyer has also been respectful of old monuments and Justice Kagan joined Alito’s Opinion, in part), but it’s not unreasonable to assume—even though he professed to leave other church-state cases untouched for now—that his intent is to have a no-restrictions future. Alito maintained that, when the Peace Cross was built, crosses were a symbol of World War I (I suspect he got this idea from images of thousands of crosses dotting European military cemeteries), which effectively transmuted the cross from a religious to a secular totem. He then went further to say that, even when the original purpose of a monument was clearly religious, it could, over the passage of time, also take on secular or at least dual status. He cited Notre Dame as such an example.

Because of that, Alito articulated what he clearly intends to be a new standard—Lemon is dead with the dead, and old monuments, regardless of their religious content, should be given a fresh new presumption of Constitutionality. Alito did not place a time frame on how old a monument needed to be, a point on which Justice Kagan, in her concurrence, drew a distinction. “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.” Justice Breyer, in his concurrence, also signaled that his support for Alito’s opinion was reliant on the narrowness of its application; Breyer was accepting of this particular Peace Cross, under these particular set of facts, and his support could not presumed in other instances.

To my way of thinking, the “Notre Dame as National Symbol” analogy is actually a fascinating one, and arguably completely at odds with any type of Original Intent analysis. An elegant and persuasive amicus brief filed on behalf of some of the challengers of the Cross demolishes the idea:
"By ordaining that governmental and religious authorities operate in separate spheres, the Framers sought to safeguard religion from governmental influence and interference, so that all may worship and pray, or not, according to the dictates of individual conscience. And they undertook to quell the ‘hatred, disrespect, and even contempt’ that historically has resulted ‘whenever government ha[s] allied itself with one particular form of religion.’ Engel v.Vitale, 370 U.S. 421, 431 (1962)."—Brief of Religious and Civil-Rights Organizations as Amici Curiae in Support of Respondents.
Even if you discard the thoughts of people like Jefferson, Madison, and Franklin, the fact was that many early settlers were religious refugees from Europe. Maryland itself was organized as a haven for persecuted Roman Catholics. The descendants of these early settlers were the ones who rejected the idea of a single religion—and demanded that rejection be incorporated into a Constitutional Amendment.

So, what makes a religious symbol morph into a sufficiently secular one so as to justify public support? Alito seems to imply that it’s a bit like making Madeira—you take religious monument, pour it into an ostensibly secular cask, and send it around the Horn for a few years and suddenly the grapes have become wine.

All snark aside, there are several serious issues with Alito’s formation beyond its possible breadth, not the least of which is that it implies that any old religious monument, even the most clearly sectarian, may be transferred to public ownership (and be entitled to public support) by the action of a secular government dominated by co-religionists. That’s not necessarily a theoretical problem.

But these considerations were irrelevant to the remainder of the conservative wing. Justice Kavanaugh also joined all of Alito’s opinion and added a concurrence, even more forcefully rejecting Lemon. Kavanaugh’s language is careful to be respectful of other faiths, but he also suggested an entirely new test, which, in its application, would set a very low bar: is the practice at issue coercive, and is it rooted in history and tradition? Not to make an obvious point, but it’s clear that government doesn’t need to be coercive with regard to one faith to give preferential treatment to another. The Kavanaugh Test seems to have been derived from only one portion of the Establishment Clause.

Justice Thomas reiterated not just his opposition to Lemon, but, more importantly and controversially, his position in Town of Greece regarding the scope of the Establishment Clause. In Thomas’ view, the Establishment Clause applies only to the Federal Government and not the States, and even if it does apply to the States, there would be no violation here because the Clause only applies to laws passed by a legislature, and there was no actual coercion by government in this instance. I will leave you to contemplate on your own time Justice Thomas’ personal vision that Alabama, Maryland, Texas, or California could adopt a state religion.

Justice Gorsuch joined in Alito’s Opinion, and also explicitly rejected Lemon, but added a twist: He would have rejected the Plaintiff’s claims out of hand for lack of standing, and, in one of his more colorful lines (which underlies a real future strategy of attack for potential litigants), labels and then dismisses them as “offended observers.” Gorsuch also added something a little Sphinx-like: “[W]hat matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

I don’t know what Gorsuch’s intent was, but since he found the Peace Cross acceptable, presumably it was “a practice consistent with our nation’s traditions.”
There is an emergent theme here. Look more closely at the stated reasoning of Alito, Gorsuch, Kavanaugh, and Thomas, and you can see a consistent deference, verging on favoritism, when it comes to religion.

It appears that this is the drift that Justice Ginsburg was calling out in her Dissent (joined by Justice Sotomayor). A giant “Latin” Cross doesn’t become a secular totem because it is used to commemorate a secular event, or, for that matter, because it was ubiquitous in either the majority’s, or the majority of the Court’s, upbringing. The Cross is a primary representation of Christianity, as it is Christ on the cross—Ginsburg calls it “the foremost symbol of the Christian faith.” The idea that all American soldiers of other faiths who were fatalities in World War I were buried in Europe under that cross, with the consent of their families, is ludicrous. One cross cannot possibly represent all faiths. Accordingly, Ginsberg writes, having Maryland maintain and support this particular Peace Cross on a public highway, “elevates Christianity over other faiths, and religion over nonreligion.”

What Ginsburg is saying seems to me to be obvious (although she clearly doesn’t have a winning hand). But it also seems she’s braying at an ascendant conservative moon. As Alito obliquely acknowledges with his assertion that this cross now has now “taken on a secular meaning,” conservatives increasingly see their religious beliefs as having been integrated into part of the secular world, and, as a result, those beliefs can be institutionalized without offending the First Amendment. If anything, Alito says, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
With that, Alito gives it even more special status—not only must the public, including those of other faiths, or no faith, passively support the Cross, but the First Amendment demands they ensure it is affirmatively defended.

I said above that I wasn’t sure whether or not I agreed with the result that the Cross could stay. Personally, I wouldn’t move it, out of respect for the families. But what I do worry about is that American Legion isn’t just about a cross, as Town of Greece wasn’t just about a few prayers at a public meeting. It’s a peek into an emerging world where the First Amendment is both sword and shield for a potent, determined group that wants to advance its religious agenda at the expense of those who don’t share its faith or its views. That inversion is being enabled and quite literally encouraged by a Supreme Court that is sending signals that anything goes.

It is a very good time to be a religious conservative. For the rest of us, our rights are a little less certain.

Or, to put it more simply (quoting from that amicus brief), “‘Religion & Govt. will both exist in greater purity, the less they are mixed together.’ Letter from James Madison to Edward Livingston (July 10, 1822).”

For more material, including access to the opinions, briefs, and scholarly commentary, consult SCOTUSBLOG at

And, to read about how the changing composition of the Court potentially impacts their rulings, see Your Rights, Part I, and Your Rights, Part II
The original of Your Rights, Part III, Establishment Clause Edition, was first published in on on June 24, 2019

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Michael Liss