Legal Affairs July 2006

Supreme Confusion

The Supreme Court's ruling on the Texas redistricting case illustrates a recurring problem: The Court has a tendency to make things more confusing, not more clear.
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"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II—A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II—B and II—C, and an opinion with respect to Part II—D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions—six in all, none winning the full assent of more than two justices—of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature's mid-decade partisan gerrymander of the state's 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Two days earlier, the justices had issued a similar, 70-page "cacophony," as Justice John Paul Stevens called it, striking down Vermont's tight restrictions on campaign contributions to, and spending by, candidates for state office: another six opinions, also with none winning more than two justices' full support.

"It is emphatically the province and duty of the judicial department," Chief Justice John Marshall wrote in 1803, in Marbury v. Madison (a unanimous 26 pages), "to say what the law is."

Now we have nine justices who mostly prefer to litter the legal landscape with their own idiosyncratic visions of what the law ought to be.

One cost of this modus operandi is confusion. Another is the ongoing disintegration of the idea that we are governed by the rule of law, as distinguished from the policy and political preferences of shifting coalitions of individual justices.

For example: How much racial gerrymandering does the Voting Rights Act require to create safe seats for black and Hispanic politicians? And at what point does what the Voting Rights Act requires run into what the Constitution's equal protection clause forbids?

Don't expect to find a clear answer in any majority opinion. You'll have to start with Justice Anthony Kennedy. He appears to have seized with enthusiasm the role of retired Justice Sandra Day O'Connor as the oracular tiebreaker in many 5-4 splits. So, for example, Kennedy was the only justice to vote with the majority in both holding No. 1 and holding No. 2 in the Texas case. A sample of his judicial hairsplitting: "In the equal protection context, compactness focuses on the contours of district lines to determine whether race was the predominant factor in drawing those lines .... Under Section 2 [of the Voting Rights Act], by contrast, the injury is vote dilution, so the compactness inquiry embraces ... the compactness of the minority population, not ... the compactness of the contested district."

Clear enough? Now, make yourself a chart, start reading those 123 pages of opinions, and try to count how many other justices agree with Kennedy on any or all of this. Give yourself plenty of time.

John Roberts, the new chief justice, has gamely expressed hope that he might help persuade his colleagues to speak with fewer voices. Good luck. In the words of the late Chief Justice William Rehnquist, the justices are "as independent as hogs on ice."

Why does their independence manifest itself in so many splintered decisions? Part of the reason is the demise of what Justice Oliver Wendell Holmes Jr. long ago derided as the idea that the law is a fixed "brooding omnipresence in the sky." For better or worse, for many decades it has been hard to deny that to a large extent we have a government of men (and women), not laws.

Another part of the reason may be the justices' increased reliance on their bright, 20-something law clerks. Since 1945, clerks have multiplied from one per justice to four per justice. This despite the Court's slashing of its caseload from 160 full decisions in 1945 to about half that many today.

With clerks doing much of the hard detail work of drafting opinions to fit the justices' more-or-less specific instructions, each justice can spew out verbiage by the ton—individualized concurrences, "concurrences in the judgment," "concurring in part and dissenting in part," and dissents, as well as the occasional majority or plurality opinion. And they can do this without having to work very hard, except in June, when they habitually issue a final flurry of opinions before taking a three-month vacation.

Benjamin Wittes of The Washington Post and I suggest in the July/August issue of The Atlantic Monthly ("Clerks and Perks") that perhaps the justices' collective work product would improve—or at least become more collective—if they were cut back from four clerks to one, or none, and had to do more of their own work.

(This has provoked derision—some of it wickedly funny—from nitpicking journalists and bloggers, including former clerks.)

Meanwhile, it's tempting to suggest that if the Court can't speak with an authoritative and reasonably understandable voice, it should butt out of the "political thicket" that Justice Felix Frankfurter unsuccessfully urged it to avoid 60 years ago.

Tempting, that is, until one surveys the manipulations of the political process wrought by elected politicians—with the help of "reformers" pushing ideological agendas—to entrench themselves in power and stick it to their adversaries.

The Vermont and Texas cases both exemplify such manipulations. And in both cases, by narrow margins, shifting majorities of justices got the big issues about right. (I have my doubts about holding No. 2 in the Texas case.)

The Vermont Legislature's effort to restrict campaign spending and contributions was so extreme as to mock the notion that campaign finance "reformers" are content to attack "corruption" and do respect the freedom of speech.

The law's spending caps—which flew directly in the face of 30 years of Supreme Court precedent—were set at $2,000 for the primary and general elections combined by candidates for state representative (and 10 percent less for incumbents).

Vermont's caps on contributions ranged from $200 for state representative candidates to $400 for statewide candidates. The justices, who had never before struck down a contribution cap, ruled that these were so low that they might prevent challengers from mounting effective campaigns against incumbents.

Indeed, entrenching incumbents was no doubt an integral part of the purpose—not merely a side effect—of Vermont's campaign finance regulations, as well as those adopted by other states and by Congress.

To be sure, many reformers and some politicians are sincerely motivated by the urge to purge the corrupting effect (or appearance) that large campaign contributions have had on our politics. And such measures as the $2,000 cap on contributions to congressional candidates and the abolition in 2002 of huge soft-money contributions to political parties have done some good. (Some harm, too.) But some skewing toward incumbent protection is inevitable when the incumbents ration the freedom of speech of, among others, their critics.

Another recent example was the April 5 vote by House Republicans—most of whom feed very happily on special-interest money—to limit severely the amounts that can be given to the political advocacy groups known as "527" organizations (named for a tax-code provision).

What's wrong with 527 groups? Well, the ones that most offend Republicans do not pose much risk of corruption: They are independent and driven mainly by ideology. The problem is that rich liberals such as George Soros have given the Democrats a big advantage in the 527 game. The Republicans' solution is to starve the 527s.

With elected officials such as these, we need justices unafraid to provide a check. The current nine are not bashful in that respect. If only they could be a bit more bashful about detailing every little nit that they have to pick with their colleagues.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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