Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
The tribal dispute first argued in November with more briefing asked for was held over; Stolen Seat Guy didn't take part, so it still might be decided 4-4. We still have some important orders to hand down tomorrow, including abortion stuff.
The other case basically no one but the participants cared about involved a rule where unconscious drivers by law were deemed to have consented to blood draws. A majority (with Breyer going along with Alito, again not really having a key "conservative special" to write for the Court this month) reached out to decide that "exigent circumstances" generally allows this. SSG didn't think that was the question and would "DIG." Sotomayor for the ladies thought so too but provided a full dissent.
The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.
Each side here said the matter was "narrow," but the other two cases were of some more importance. Both are covered by Rick Hasen at Election Law Blog, Dahlia Lithwick has a thing to say over at Slate and so on. Basically, Kavanaugh provides a fifth vote to firmly say partisan gerrymandering is a political question, both because it's something allowed and because there aren't clear standards for federal courts to handle it. Let state courts (unless they find something wrong with their approach?), independent commissions (ideal if a state manages to have them and Roberts in a 5-4 opinion -- maybe it's different now? -- already thought there were constitutional problems with them) or maybe bills (sic) proposed in gerrymandered legislatures handle the situation.
Kagan dissented from the bench (her three such dissents were in election cases) noting, yeah, "As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?” The basic problem here was that for years the liberals said partisan gerrymandering was a problem, Kennedy agreed in principle, but he never provided a fifth vote (he had one more shot last term) to a majority opinion. The opinion is a Kagan special; she helped craft some liberal wins, not this time.
[She dissented from the bench and it took a while. Of course, we did not see it. This is wrong. Oyez.com will release it some months down the road.]
Roberts denies there is a constitutional provision violated [as compared to one person, one vote?*] but equal protection, First Amendment concerns and probably something else (right to vote?) can and has been cited. As to prudence, I respect the concern up to a point, but the problem is rather egregious to say "not our problem, dude." Cf. Alito's concern in the trademark case: "At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination." Let's see how those alternative methods work.
The census ruling, which gave various liberals angina the last few weeks worrying about how horrible it would be, was "okay for now." The headnotes suggests as much with various aspects of Roberts' opinion. The opinion as a whole blessed the use of a citizen question in theory, but that it was done here in an illegitimate matter. Chris Hayes cynically replied: "Come back and lie to us about your motives more convincingly, please.” Rick Hasen basically figures there is a decent chance this is fair enough. The Trump crew have until October, it seems, to figure something out.
As noted at that link, there is clear evidence (with someone who pops up in the partisan gerrymandering dissent too) that the point of the census opinion is to advance Republican electoral ends. Justice Alito in partial dissent is all "they call it racism, but a citizenship question is fine policy, just look at international experience and everything!" Thomas (joined by the Trump guys -- this case again turning on two tainted seats) is more "there is nothing to see here!" Gorsuch not worrying about administrative agencies going amuck here. So, even Roberts' limited bowing to the obvious was too much for four of them.
Breyer for the liberals would avoid sending it back, holding it invalid on administrative law grounds now. He notes the question clearly will inhibit a fair count, the very point of the census provision. Doesn't say as much, but this appears to violate the Enumeration Clause as applied as well. The partial dissent was fairly temperate, perhaps realizing they got the most one could hope for. No (cf. travel ban) Sotomayor dissent to call out the racism involved here. But, this case might be back.
[The updated SCOTUSBlog entry helps clarify who joined what section and it turns out the liberals didn't join the Enumeration Clause section. My reading of Breyer's opinion doesn't suggest he directly says the question was used in away that violated that clause but that does leave it open.]
* To the degree the minimalism here clashes with racial discrimination, remember this is the guy who wrote Shelby v. Holder and while in the Reagan/Bush Administrations was no fan of a strong usage of judicial power in this area to enforce black voting rights. Also, there is going to be overlap -- partisan and racial gerrymanders tend to go hand and hand given party splits. Toss in state courts, districting battles will still be around.
The liberal judicial minimalism argument is that the result is ideal, putting aside concerns (perhaps) that Roberts et. al. won't be consistent. But, as noted, judges will still be involved. Plus, even if many of the federal judges will be Republican nominees, they all won't be, and even so, there will be various cases the facts are clear. The constitutional rule will also apply to state actors, including providing pressure to encourage independent commissions and so forth.
At times, judges might only select certain types of gerrymandering (see Thomas in his census opinion suggesting the district judge was biased for finding problems), but net, what will that give you? A narrow number of cases. Some simply will deny evenhandedly. There still are some liberal judges and friendly appellate courts and we can also play the long game.
One conservative wondered what liberals were concerned about since both sides gerrymander. Rick Hasen (Election Law Blog) replied: "It has become a partisan issue because Democrats have looked for ways to end the practice without unilateral disarmament (as in H.R. 1) but Republicans have looked for ways to keep doing it. Only Rs supporting redistricting reform in places like CA, where Dems have leg lock." Maybe election reformists know what they are talking about?
(Also: "It is easier for the more rural and exurban party to engineer extreme
gerrymanders, so the Court’s abdication will overwhelmingly favor the
party of all five members of the majority.")