Death By Inches

A couple of months ago in Vieth v Jubelirer, the Supreme Court chose not to revisit precedents which permit the extraordinary gerrymandering which has led to the overwhelming majority of Congressional seats being "safe", or for one political party to carry a majority of a state's Congressional seats even when the majority of the state's voters supported the other party. Four Justices (Scalia, Thomas, Rehnquist and O'Connor) wanted to upset precedent and declare gerrymandering to be a nonjusticiable "political question":

Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard [for review of gerrymandering claims] promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.

The precedent was saved by the reticence of Justice Kennedy, who refused to accept the majority's opinion of nonjusticiability:

Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context.

It could also be noted that there are other contexts where the Supreme Court has had great difficulty articulating a workable standard for review of difficult questions (e.g., with the First Amendment's Establishment Clause) - but has nonetheless attempted to live up to its constitutional obligations by asserting and refining various standards and tests.

This week, three of the Justices who wrote the majority opinion for the Vieth decision, Rehnquist, Scalia and Thomas, dissented to the Supreme Court's refusal to take a Colorado redistricting case, and were seemingly frustrated that they could not overturn a Colorado Supreme Court decision which interpreted Colorado's state constitution.

The court ordered Davidson to employ the judicially created plan through the 2010 elections. While purporting to decide the issues presented exclusively on state-law grounds, the court made an express and necessary interpretation of the term “Legislature” in the Federal Elections Clause in concluding that “[n]othing in state or federal law contradicts this limitation.”

The majority presumably did not find compelling the argument that a passing mention that there was no state or federal precedent on an interpretation of a particular term ("legislature") transformed the interpretation of the state's constitution to a proper subject for federal review.

While there is more technical validity to the hairsplitting than the New York Times suggests, today's editorial does get to the true politics at play in both decisions.

What is troubling, however, is a dissent by Chief Justice William Rehnquist and two of his colleagues that argues for diving into the conflict. Given these justices' eagerness to defer to the states in other matters, the dissent smacks of partisan politics and raises new concerns about the court's neutrality. ... By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives.

When the same Justices prevent a state recount on the principle of "Equal Protection" - a clause the same justices had pretty much written out of the Constitution in any other context - and at the same time express that the opinion cannot be used as precedent, attempt to remove federal oversight of gerrymandering, and advocate the reinterpretation of decisions made under a state constitution - a position again seemingly in conflict with their long-standing positions on federalism - it becomes more than fair to question if this pattern truly reflects an evolution of their legal thinking (albeit an evolution limited to the subject of federal elections), or if it in fact reflects a desire to interfere with and impede the exercise of democracy as intended by the Founding Fathers.