“If my fellow citizens want to go to Hell I will help them,” Justice Oliver Wendell Holmes wrote to a friend in 1920. “It’s my job.”
But what if our fellow citizens are already in hell, and vote to spring themselves? Are today’s Justices required to block the exit?
That is one way to view the issue in Arizona State Legislature v. Arizona Independent Redistricting Commission, which was argued before the Supreme Court on Monday. Based on the questioning from the bench, a majority of the Court seems poised to answer “yes”—that Arizona voters violated the Constitution when they tried to rid their politics of partisan legislative gerrymanders. They did this in 2000 by passing an initiative creating an independent commission to draw legislative and congressional districts, with instructions to create competitive districts where possible. The commission is appointed by a complicated process, designed to make it independent. First, a panel that usually selects judges creates a bipartisan list of names. Then the majority and minority leaders of the two houses of the legislature pick four members, two from each party. Those four members then select a chair who belongs to neither party.
The commission prepares a plan and opens it for public comment. The legislature can file an objection—just like any other group—but it cannot veto the plan. The plan worked fine in its first go-around in 2001, but this time, beginning in 2011, the state Republican Party has fought against it at every step. Redistricting, they say, is their business alone.