The Supreme Court Would Prefer Not To
Amid the partisan crossfire of Washington, Gill v. Whitford provides the latest example of the justices keeping their heads down.
A 1960s novelty toy consisted of a small plastic box with a jointed lid and a switch. When the switch was turned on, a hand emerged, grabbed the switch and turned it off, then retreated back into the box.
The Supreme Court’s October 2017 term, which will lurch to its end next week, has, to a surprising extent, come to seem like that novelty toy. Though last October promised a crop of blockbusters, the Court so far has taken every possible opportunity to avoid important decisions.
On Monday, the Court bailed out of the high-profile Wisconsin gerrymandering case on highly technical grounds. But Gill v. Whitford is not the only major case the Court has ducked; indeed, it is not the only major case the Court ducked during that very half-hour session Monday. The justices also artfully dodged Benisek v. Lamone, a companion gerrymandering case from Maryland, and delivered a narrow, and perhaps temporary, win for Fane Lozman, the civic gadfly arrested at a city council meeting in Florida for addressing topics the council members didn’t want to hear about.
So far during June, the Court has managed to strike down a Minnesota law against wearing political apparel at the polls without making any new law or, indeed, shedding any light on the old law; to vacate a lower-court decision concerning minor girls held by immigration authorities who seek abortions without hinting at the answer; to dodge with soothing platitudes the government’s angry ethics complaint against lawyers for the American Civil Liberties Union in that case; to reject an immediate appeal in an important abortion case from Arkansas, leaving the issue for now to a lower court; and, of course, to decide Masterpiece Cakeshop v. Colorado Civil Rights Commission with an opinion that favored the single anti-gay baker in his refusal to bake a cake for one particular couple, without deciding how future bakers will fare.
Like a Magic 8-Ball, the Court keeps coming up: “Ask again later.”
Gill v. Whitford was a challenge by Democratic voters to the grotesquely partisan legislative districts drawn by the Republican Wisconsin legislature after the GOP swept both houses in 2010. The case was heard in the first week of the term, and some observers predicted the result would almost single-handedly determine the future course of American democracy.
The case, however, ran into trouble from the start. Everyone agrees partisan gerrymanders are naughty. But how can a court tell unconstitutional partisanship from good old political sleaze? The lower court had adopted a mathematical test called the efficiency gap, which measured how many more votes it would take one party to win a specific level of power than would be required of the other party. By the time the case reached the high court, however, the plaintiffs had backed off the efficiency-gap test and proposed a menu of tests courts could use to detect excessive partisanship. At oral argument, Chief Justice John Roberts complained that the Court was being asked to decide a constitutional issue on the basis of “sociological gobbledygook.” Justice Neil Gorsuch said the plaintiffs’ proposed tests reminded him of his supposedly delicious steak rub: “I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each.” (Really, turmeric?)
Three months after argument and conference, the Court calendared Benisek, the Maryland case. (If it had cleanly decided Gill, the most likely move would have been to “hold” Benisek, not to schedule argument.) At oral argument in March, Justice Stephen Breyer helpfully suggested that the Court schedule yet another session to hear both cases again, along with a pending Texas case: “We would enable people who have an interest in this subject generally to file briefs, and we’d see them all together and they could attack each other’s standards or they could support each other’s standards or they could attack any standard,” he proposed. This did not suggest a clear direction within the Court.
So it was an anticlimax but not a shock when the Court, in an opinion by Roberts, turned away the case because the plaintiffs lacked “standing to sue”—a federal jurisdiction term that in essence means the plaintiffs have no real dog in the fight.
The plaintiffs in Gill, the chief wrote, were complaining of a general injury to their party—statewide, Democrats have too few seats—rather than to themselves as individual voters. True, they had in fact alleged exactly that kind of individual injury in their pleadings. “The facts necessary to establish standing, however,” Roberts responded, “must not only be alleged at the pleading stage but also proved at trial.” He wrote that “not a single plaintiff sought to prove that he or she lives in a [gerrymandered] district.”
Every second-year federal-courts student learns that, when a court finds lack of standing, it must dismiss the case, because it is not a real “case or controversy.” But, remarkably enough, Roberts made this problem disappear: “This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved.” So the Court remanded the case (which is technically nonexistent because, remember, standing) to the three-judge court to let the plaintiffs try to prove their standing again.
This decision wasn’t about “justiciability”; it was about “ask again later.” (Justice Elena Kagan wrote a concurrence for herself, Breyer, and Justices Ruth Bader Ginsburg and Sonia Sotomayor laying out a roadmap for the plaintiffs to prove their claims on remand, and laying out a First Amendment theory of standing that would also allow them to prevail; Justice Clarence Thomas, joined by Gorsuch, wrote separately to say that a case without standing should be dismissed at once.)
As for the Maryland case, the Court, in a five-page squib, sent the case back for a trial. The parties could ask the Supreme Court later.
Finally, the Court deflected the case of Lozman, a civic gadfly who has repeatedly challenged decisions by the city council in Riviera Beach, Florida. A member of the city council had directed police to arrest Lozman when he addressed the council at a public hearing.
Lozman sued, alleging “retaliatory arrest,” a violation of his First Amendment rights. Discovery showed that the council members had, in their own words, decided to “intimidate” Lozman and other critics “so that they can feel the same kind of unwarranted heat that we are feeling.” The federal courts below dismissed Lozman’s suit, on the grounds that a little-known state statute forbade “disturb[ing] schools, churches, or assemblies.” The officer could have arrested Lozman for violating that statute, had the officer had known about it. The question before the Court was whether that test—“an arrest is okay if somebody after the fact can find a reason for it, even if it wasn’t the real reason and even if the real reason was retaliation for protected speech”—was the right one.
The Court awarded Lozman a kind of Writ of Cakeshop—that is, a holding that “you sure did get a raw deal and we sure do thank you for coming by.”
The issue, Justice Anthony Kennedy wrote, “is a narrow one.” Lozman could have been lawfully arrested for refusing to leave the microphone when ordered to; however, his claim of retaliation might be enough to defeat that argument. “For Lozman’s claim is far afield from the typical retaliatory arrest claim,” in which a police officer makes a “split-second” decision to arrest an annoying person, Kennedy wrote. In fact, Lozman isn’t suing the police officer. “His claim is that the City itself retaliated against him pursuant to an ‘official municipal policy’ of intimidation” and “formed a premeditated plan to intimate him in retaliation or his criticisms of city officials and his open-meetings lawsuit,” Kennedy wrote.
So—guess what?—the Court sent the case back down to give Lozman a chance to prove that claim under a standard different from a normal retaliatory-arrest claim. The Court’s opinion, however, ends with a list of reasons why a lower court might actually rule against him anyway. (Thomas dissented, arguing that Lozman has no claim anyway.)
The Court term has three to five more opinion days before it lurches to its end next week. Some important cases remain, and some of them surely will be actually decided. But the Court’s reluctance to make new law is striking—especially considering the relative lack of dissent in its recent dodgy decisions. Standing and other procedural niceties could provide a means of dodging the biggest case of all, Trump v. Hawaii, which tests the administration’s “travel ban” barring entry of immigrants from certain mostly Muslim countries.
More and more, the Court this term seems like Melville’s Bartleby the Scrivener, who, when asked to do one or another part of his job, was wont to reply, “I would prefer not to.” Why that is so will not be known until future generations access the justices’ papers. But could it be that, as the winds of Trumpism scour the political and legal system, the Supreme Court, like many others in Washington and elsewhere, is simply keeping its head down?