Until last week, the Supreme Court’s 2014-15 term had been remarkably collegial. That went out the window Friday, when the decision in the same-sex marriage cases spurred Antonin Scalia to mount a remarkable personal assault on his colleague (and fellow Reagan appointee) Anthony Kennedy. The bad feeling persisted Monday as the justices announced the last three opinions of the term.
First, Scalia improvised an unprecedented oral dissent from a dissent by two of his colleagues, Ruth Bader Ginsburg and Stephen Breyer, during the announcement of Glossip v. Gross, the challenge to Oklahoma’s planned method of lethal injection. (More on that to come.) Equally striking was the tone of two written dissents—one by John Roberts and the other by Clarence Thomas—in Arizona State Legislature v. Arizona Independent Redistricting Commission. Roberts penned a dissent from his own majority opinion in King v. Burwell; Thomas refought the same-sex marriage cases.
In Arizona, the Court held, 5-4, that state voters may transfer the task of drawing U.S. House districts to an independent body whose members don’t hold office. Ruth Bader Ginsburg wrote the opinion of the court, joined by Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Twelve states already use commissions to draw districts in one way or another. (New York’s will go into effect for elections after 2020.) Residents of those states can breathe a sign of relief: The Constitution does not condemn them to hyper-partisan hell. But relief should be more widespread. A ruling against redistricting commissions would have suggested, in the words of University of Chicago professor Nicholas Stephanopoulos, that “much of modern election law may be void.”
The case’s origins trace back to 2000, when Arizona voters approved Proposition 106. The ballot measure created a new, bipartisan panel called the Independent Redistricting Commission to create new districts for the state legislature and Arizona’s nine members of the U.S. House. The legislature may make suggestions to the commission, but may not disapprove or block its districting plans. By taking redistricting out of legislators’ hands, the proposition hoped to eliminate gerrymandering of electoral maps.
The state legislature didn’t like the commission’s 2012 map, so it went to court to block it. Republicans control both houses of the legislature; they would have drawn maps more favorable to the GOP. Legislators made a constitutional argument: Article 1, section 4, clause 1 of the Constitution, also known as the “Elections Clause,” says that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” That language, they argued, meant that only the sitting body called “the legislature” could draw districts for the U.S. House. (State districts are not covered by the Clause and were not at stake in Monday’s case.)
The commission’s lawyers responded that the Arizona state constitution provides that “[t]he legislative authority of the state shall be vested in the legislature ... but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature, and ... to approve or reject at the polls any act … of the legislature.” The people are part of “the legislative authority,” they argued.
After oral argument, the prospects for the commission seemed dim. The legislature’s argument is very much in keeping with the biblical style of constitution-reading that is in conservative vogue: “Legislature” means “legislature,” they argued. The Founding Fathers never said anything about any stinkin’ ballot initiative.
On the other side, however, were a few precedents of the Court. The Constitution permits the people to overturn a legislative district plan by referendum, the Court has previously held. A state constitution can also constitutionally permit the governor to veto a plan, according to another ruling. If “legislature” means legislature, then are those precedents wrong?
No, they aren’t, said the Court’s majority. “The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way states enact legislation,” Ginsburg wrote. “[T]he Clause surely was not adopted to diminish a State’s authority to determine its own lawmaking processes.” Beyond that, the literal-reading rule “would cast doubt on numerous other election laws adopted by the initiative method of legislation.”
The Court’s opinion further noted that state constitutions themselves often contain regulations of voting. Those constitutional provisions are usually adopted either by popular vote or by special convention, meaning that everything about a state’s federal election laws could be rewritten by legislative whim. Meanwhile, the federal Election Clause does not govern anything about state legislative elections, which would remain under control of the political process generally. In other words, there might soon be, in many states, two full sets of election laws, one for federal and one for state.
There will be enough questions of political theory, practical impact, and constitutional interpretation to keep constitutional law nerds like me happy during the Court’s summer recess. But for today, the most interesting development is the dissents. Roberts argued that all the hand-wringing about spillover effect was bogus: The Constitution only bars the voters from totally excluding the legislature from districting. The weakness of this argument is that the text doesn’t contain that limit; if “legislature” means only and always the bad-haircut gang at the state capital, then governors, courts, and voters are out altogether, and the nightmare would be only beginning.
But here’s the passage from Roberts’ dissent that caught my eye: “In short, the effect of the majority’s decision is to erase the words ‘by the Legislature thereof’ from the Elections Clause.”
The majority had based its reading in part on the purpose and spirit of the Constitution; “by the legislature thereof,” they said, meant “by the legislature or the voters thereof.” The words should be read in tune with what the Framers were trying to achieve, and against the background principle that the people, not their legislative masters, are the true rulers of the American republic.
That reading, Roberts said, was “judicial error of the most basic order.”Almost as if, for example, a statute were to say “established by a state,” and a court were to read it to mean “established by a state or the federal government.”
Enough said about that; I think Roberts read the statute right in King v. Burwell, and I think the majority read the Constitution right in Arizona, and I leave it to Roberts to reconcile any conflict between his opinions.
But the curtain cannot drop on this term until we hear from Justice Clarence Thomas. Both Thomas and Scalia joined Roberts’s dissent, but each wrote separately to argue that the case should have been dismissed because the legislature itself lacked “standing to sue” and so, as Scalia said, the question was not “properly before us.”
However, most of Thomas’s dissent was about same-sex marriage and what hypocrites the majority are. “Reading today’s opinion, one would think the Court is a great defender of direct democracy in the states,” he began. However, “[j]ust last week, in the antithesis of deference to state lawmaking through direct democracy, the Court cast aside state laws across the country—many of which were enacted through ballot initiative—that reflected the traditional definition of marriage.”
Thomas went on to re-litigate 20 years’ worth of cases in which the Court had set aside state initiatives, such as an initiative imposing term limits on members of Congress and even the notorious Colorado anti-gay initiative set aside in Romer v. Evans. “I would dispense with the faux federalism,” he wrote, “and would instead treat the states in an evenhanded manner.”
Thomas really doesn’t deal with the merits of this case. Instead, he says a bunch of stuff about past cases and rolls his eyes at what a bunch of phonies his colleagues are. On a day in which Scalia invented the oral dissent from an oral dissent, Thomas seemed to have invented a new written form—the faux dissent.
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