The Ideological Balance of the Supreme Court Hangs On The Midterm Elections— But Not Because Of Kennedy

Now that Justice Kennedy has announced his retirement, everyone’s attention has turned to the question of who will fill his seat.  Given Kennedy’s status as the swing vote (despite being quite “un-swingy” as of late), Democrats are rightly concerned that a replacement in the mold of Justice Gorsuch could shift the ideological balance of the Court for a generation.  Democratic senators are already rallying to make the upcoming midterm elections about Kennedy’s replacement.  There’s just one problem: they don’t have the votes.

Democrats are in the minority and it’s sheer fantasy to think that even the most “persuadable” Republican senator would be willing to hold a seat open until after the midterm elections.  The best short-term hand Democrats can play is to pressure more moderate Republican senators into supporting the least-extreme potential nominees on Trump’s list.

The long-term makeup of the Court, however, still hangs in the balance this November.

That’s because whoever controls the Senate in the next two years may well determine who fills Justice Thomas’s seat.  Until today, some speculated that Thomas—not Kennedy—might be next to retire.  Most of the reasons for that speculation—especially the ability to step down during a Republican presidency—still hold.  And while a “blue wave” would come too late in the day to prevent moderate Kennedy from being replaced with a hardline conservative, it would not come too late to prevent hardline-conservative Thomas from being replaced with a moderate.  The Democrats face an uphill battle to retake the Senate, but if they succeed they could insist on amends (Merrick Garland, anyone?) or even hold the seat open in the hopes of a Democratic presidency in 2020.

The Supreme Court is in for a markedly conservative turn in the near future no matter what happens.  Whether that rightward swing holds for a generation, however, rests with the voters this November.

Dodge, Duck, Dip, Dive, and Dodge: The 5 D’s of the Gill v. Whitford Decision

            In 2004, Justice Scalia led a plurality in Vieth v. Jubelirer that attempted to affirmatively hold partisan gerrymandering claims to be “non-justiciable” due to the (supposed) lack of “manageable standards” for adjudicating such claims.  The late Justice, however, failed to convince a key fifth vote: Justice Kennedy.  Kennedy wanted to hold out hope rather than definitively and permanently closing the door to the possibility of a future claim.

            Chief Justice Roberts’ decision in Gill v. Whitford takes this lesson to heart along with some other wisdom from 2004: the importance of mastering the ability to dodge, duck, dip, dive, and dodge.  Although the Gill decision purports to leave a path open to litigants and avoid the question of justiciability, Slip Op. 13, the Chief may have recognized that if he can dodge the claim long enough, it will perish all the same.  Providing an endless or impossible path has the same effect on litigants as providing no path at all, and yet it allows Kennedy to remain a champion—right through to retirement.

            In the majority opinion, Roberts clothes classic manageability arguments in the language of Article III standing and the constitutional limits of federal judicial power (a not-so-subtle nod to one of Kennedy’s core concerns).  For example, Roberts frames both symmetry and the concept of vote dilution itself as involving “hypothetical” states of affairs, see Slip Op. 12, 16, before going on to emphasize that any “burden on the plaintiffs’ votes [must be] ‘actual or imminent, not conjectural or hypothetical,’” Slip Op. 19.  Roberts also emphasizes that the harm must “affect the plaintiff in a personal and individual way,” Slip Op. 13, while discounting the ability of existing partisan affiliation analyses to sufficiently carry that burden, see Slip Op. 20 (arguing that symmetry measures “are an average measure” and “do not address the effect that a gerrymander has on the votes of particular citizens”); Slip Op. 21 (remanding so that “the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes”) (emphasis added).

            These formulations seem to demand more than a repackaging of plaintiffs’ existing evidence.  Justice Kagan (and I)[1] may believe that the plaintiffs should be able to take their “mass of packing and cracking proof” and “now . . . present [it] in district-by-district form to support their standing,” Kagan Op. 6, but it is worth taking a sober look at which opinions Justice Kennedy did (and did not) join.  In the meantime, it is unclear what kinds of evidence would satisfy Roberts’ standing requirement for an individual vote dilution claim—and the fact that it could take years to find out may well be the point.

            Yet, an appeal out of North Carolina (that was just set for a conference in the days ahead)[2] may still throw a wrench in the Chief’s plans.  Not only did the district court in the North Carolina case hold that the plaintiffs had both statewide and district-by-district standing, see App-40-41, n.9, the North Carolina case also addressed another theory of harm altogether—one grounded in associational rights, see App-37 n.8 (“Plaintiffs in the present case do not merely allege harm stemming from a congressional delegation whose partisan makeup does not reflect that of the state as a whole. Plaintiffs testified to a statewide chilling of association and discourse between Democrats and Republicans—both within each party and across party lines—due to the lack of competitive districts.  This drove down voter registration, voter turnout, and cross-party political discussion and compromise.  Furthermore, the disfavored political party suffered from statewide decreases in fundraising and candidate recruitment, while at the same time incurring increased statewide costs for voter education and recruitment.”).  See also App-39 (“Partisan gerrymandering also implicates additional, non-district-specific First Amendment harms, such as infringing on the right to associate with likeminded voters to fund, attract, and elect candidates of choice.”).

            It is perhaps no coincidence that Kagan—leading a group of four Justices—described the potential for a separate, statewide, associational claim in terms seemingly tailored to this separate basis for standing.  See Kagan Op. 9 (noting that “Members of the ‘disfavored party’ in [a] State, deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office”).  In short, the Supreme Court may face a test of Justice Kagan’s associational claim theory at the very top of the next Term.

            Would Justice Kennedy be amenable to such an approach?  Only time will tell, but there are a few reasons for cautious optimism.  First, while the Chief Justice’s opinion laid out a potentially difficult path for individual vote dilution claims going forward, the opinion had almost nothing to say about Justice Kagan’s associational theory, stating, “We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”  Slip Op. 16.  This clean reservation could have been the price of Justice Kennedy’s unqualified join.  (Indeed, Justice Kennedy’s opinion in Vieth was the original source of the “First-Amendment-focused” approach to partisan gerrymandering claims—a point Justice Kagan did not hesitate to highlight in her concurring opinion.)

            Second, the facts in the North Carolina case are almost too extreme to comprehend.  The NC General Assembly’s Joint Select Committee on Congressional Redistricting formally adopted districting criteria that expressly included a provision entitled “Partisan Advantage,” which stated that the Committee “shall make reasonable efforts to construct districts” that result in a congressional delegation of “10 Republicans and 3 Democrats.”  When presented with a similar “hypothetical” by Justice Kennedy at oral argument, even the defendants in Gill and Benisek conceded that such a law would be unconstitutional.

            Finally, for all of her citations to Kennedy’s opinions, Justice Kagan left out one that might end up being quite significant: Citizens United.  The district court in North Carolina repeatedly cited Citizens United as support for its First Amendment holding, arguing, for example, that “partisan gerrymandering runs afoul of the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers.” App-167.  Will Justice Kennedy use the North Carolina case as an opportunity to try and frame Citizens United in a new light, perhaps drawing former foes into gritting agreement over some of that case’s broader principles?

            The days ahead may offer our best opportunity to gauge whether a judicial remedy is just around the corner, or whether there is no end in sight.  If any case can derail the Chief Justice’s new approach to standing in partisan gerrymandering claims, it’s the North Carolina case.  Then again, if he can dodge this wrench, he can dodge them all.

[1]While I am decidedly biased, there is a lot to love about Justice Kagan’s proposed approach to the individual vote dilution claim: she notes that “[t]he point is that the plaintiff can show, through drawing alternative district lines, that partisan-based packing or cracking diluted her vote” and that “[t]he precise numbers are of no import,” Kagan Op. 5; she recognizes the distinct concept of “[i]llicit partisan intent—a purpose to dilute [targeted citizens’] votes in drawing district lines,” Kagan Op. 6 (emphasis added); and she draws a parallel to racial gerrymandering case law to point out that statewide evidence “‘is perfectly relevant’ to showing that mapmakers had an invidious ‘motive’ in drawing the lines of ‘multiple districts in the State,’” Kagan Op. 7.  This approach offers a clear and coherent way to harmonize political gerrymandering case law with racial gerrymandering case law.

[2] The Court set another long-pending NC partisan gerrymandering case (16-166) for conference on June 21, 2018 as well.  Interestingly, this case also presents an issue raised in this Term’s racial gerrymandering case: when is a court’s order the functional equivalent of an injunction?  In 16-166, the NC legislature adopted a politically gerrymandered map as a replacement for the racially gerrymandered map that had been struck down.  Plaintiffs raised objections to the remedial map, which the district court rejected.  Plaintiffs argued that the district court’s order was the functional equivalent of an injunction and have been waiting on an answer ever since.

The Value of Gerrymandering

On Tuesday, Justice Sotomayor asked a “simple but devastatingly effective” question of Erin Murphy, one of the attorneys arguing in favor of Wisconsin’s gerrymandered map: “Could you tell me what the value is to democracy from political gerrymandering?”  At first glance, Justice Sotomayor’s question seems important because it transcends “the technicalities of constitutional doctrine” and raises “first principles,” making the presumed answer easy: “Political gerrymandering has no value in a democracy.”

Murphy’s answer—claiming that gerrymandering “produces values in terms of accountability”—seemed incomprehensible to observers.  “I really don’t understand . . . what that means,” was the Justice’s own apt response.  The type of gerrymander enacted in Wisconsin is specifically designed to defeat accountability, not foster it.  What was Ms. Murphy—a stellar advocate—talking about?

The answer is more revealing than it might seem because Justice Sotomayor’s question is more complex than it might seem.  Asking about the “value” of gerrymandering doesn’t just implicate democratic “first principles”—it strikes at the heart of the constitutional doctrine as well.

As Justice Breyer observed in his Vieth dissent (invoked by Ms. Murphy), political considerations can “play an important, and proper, role in the drawing of district boundaries.”  In Vieth, Breyer points to an example of a neutral court-appointed boundary drawer accidentally moving an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp’s former district.  This may be a “micro” political consideration, but any person (or organization) that has spent years working with his or her representative on a specific neighborhood project will recognize the democratic value in keeping certain areas tied to certain seats, whether to support and maintain the politician who is doing good work or to mobilize and defeat the politician who has stymied that work.  This accountability and responsiveness to voters’ interests is a feature of democracy, not a bug.

At a “macro” level, the Court has also previously allowed mapmakers to allocate seats proportionally based on statewide party voting strength, and presumably would allow a legislature to draw “competitive” seats, if it so chose.  Because both of these interests require mapmakers to draw districts based on voters’ political preferences and beliefs, however, both of these forms of redistricting are also—in the Court’s own confusing doctrinal parlance—“political gerrymandering.”

In other words, “political gerrymandering” (as the Court has curiously defined it) can serve important democratic values such as accountability, competitiveness, proportionality, etc.  Murphy’s unconvincing attempt to tie the Wisconsin map to these examples and precedents, however, reveals a key doctrinal distinction: political gerrymandering for partisan advantage does not have any such constitutional legitimacy.  That is why divvying up congressional seats in purple North Carolina between 6 Ds / 6 Rs in 2001 can be constitutional, even if divvying up the same state between 3 Ds / 10 Rs in 2016 is not.

Justice Kennedy makes a similar point in LULAC when discussing the difference between legitimate incumbency considerations and illegitimate incumbency considerations (leaving open the question of whether such a distinction might support a claim outside the racial gerrymandering context):

“The Court has noted that incumbency protection can be a legitimate factor in districting, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.  If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters.  If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters.  By purposely redrawing lines around those who opposed [the incumbent], the state legislature took the latter course.  This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters.”

Justice Sotomayor’s question isn’t a “gotcha” intended to corner an advocate—it’s a graceful synthesis of the Supreme Court’s confusing case law.  If a map advances democratic values, or legislators redistrict with the purpose of advancing democratic values, then there is little justification for courts to get involved, as the Justices recognized in Gaffney v. Cummings: “[The] judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.”  When legislators act counter to democratic values and attempt to insulate themselves from their own voters, however, they cannot hide behind the mere fact that “politics” play a (well-warranted) role in the redistricting process—a distinction the Justices also recognized in Gaffney: “[A plan] may be vulnerable [to challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”

Sotomayor’s question lays bare the simplicity of this constitutional issue in a way “the intelligent man of the street” is sure to appreciate.  Far from diminishing the Court’s credibility, judicial intervention along these lines would enhance the reputation of the Court, just as the one-person one-vote doctrine did decades ago.  And just as this generation may now wonder how an obvious doctrine like one-person one-vote took so long to arrive, “[s]o too will it be when this generation explains to their children that the government used to be able to discriminate between citizens based on how the government predicted they would vote, allowing the state to favor preordained candidates and to suppress the influence of those who disagreed with the state-sanctioned choices.”

What is the value to democracy from political gerrymandering for partisan advantage?

The intuitive answer is the right one: None.

Turmeric for a Rare Consensus

Today, the Supreme Court heard argument in Gill v. Whitford.  The Court seems as divided as ever, and the ultimate outcome still rests in Justice Kennedy’s unpredictable hands. Yet, oral argument revealed something else: litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.

As far as predictions go, guessing where Justice Kennedy will land remains difficult, but the conservative bloc on the Court previewed the outline of an opinion that it surely hopes Kennedy will join.  Their two key arguments seem tailored to Kennedy: (1) the claim is not sufficiently rooted in the Constitution, and (2) intervention would threaten the Court’s institutional integrity and exceed its constitutional role.

Chief Justice Roberts called the efficiency gap “gobbledygook” (a label eyebrow-raisingly endorsed by Justice Breyer); argued that a ruling “based on the fact that EG was greater than 7 percent” doesn’t “sound like language in the Constitution”; and aired the concern that “the intelligent man on the street” would think that the EG explanation was “a bunch of baloney” and would instead believe that judicial cases were being decided based on the Justices’ own partisan preferences, causing “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”  Justice Alito joined the fray with a framing sure to irritate young scholars everywhere: “In 2014, a young researcher publishes a paper . . . [saying] I have discovered the Rosetta stone and it’s . . . the efficiency gap.  And then a year later you bring this suit and you say: There it is, that is the constitutional standard. . . . [A]fter 200 years, it’s been finally discovered.”

Some of this is misleading: the plaintiffs did not claim on appeal that the efficiency gap should be dispositive. Justice Gorsuch took on this point in turn, observing that the district court “didn’t rely on [the] efficiency gap entirely” but instead relied on a range of measures of partisan asymmetry.  Likening the court’s effects analysis to his own steak rub (including “a pinch of this, a pinch of that,” and a touch of the Justice’s favored turmeric), Gorsuch lamented that an unpredictable mix of tests “doesn’t seem very fair to the states” who must comply with whatever law the Supreme Court announces.  In perhaps one of the morning’s more loaded questions, the Justice then asked plaintiffs, “What is it that you want us to constitutionalize?”

While it’s fair to point out that the horse may be out of the barn when it comes to fears about politicizing the Supreme Court or losing the trust of voters, the credibility of the Court still matters to the long-term health of the country and these arguments only need to win over one voter: Kennedy.  And Justice Kennedy is notoriously sensitive to the institutional role of the Court in gerrymandering cases.  (Indeed, because Roberts, Alito, and Gorsuch so vigorously pressed this line of inquiry, Kennedy’s silence during the exchanges may not be as revealing as one might hope.)

Nonetheless, some interesting areas of consensus arose in the Supreme Court today.  As I argue in an essay published today (with many thanks to the team at the Cardozo Law Review de novo), the Court could go a long way towards improving the clarity, coherency, and consistency of its case law (and enhancing the institutional integrity of the courts and state legislatures) by affirming in Gill v. Whitford and reversing in Harris v. Cooper based on some of today’s rare points of agreement.

Perhaps the most powerful point of agreement came in response to Justice Kennedy’s revival of his hypothetical from Vieth: “Suppose a . . . state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to . . . have a maximum number of votes for party X or party Y.  What result?”  After even Justice Alito acknowledged that “you cannot have a law that says draw maps to favor one party or the other,” the defendants and intervenors conceded that such a law would be unconstitutional:

MS. MURPHY: I think that that would be better thought of probably as an equal protection violation, but you could think of it . . . as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure.

MR. TSEYTLIN: A facially discriminatory law in a state would violate the First Amendment because it would stigmatize that party.

These concessions matter because they reflect a broad consensus on a key issue underlying many questions raised today.  Like the not-so-hypothetical facially partisan redistricting criteria adopted by North Carolina in Harris v. Cooper, Kennedy’s statute doesn’t require any showing of effect to be constitutionally troubling.  Rather, by using a facial category, such a law forces states to answer whether partisan advantage is a legitimate government purpose at all.

It is not.

Both the defendants and intervenors attempted to distinguish their case (and turn the tables back on the Court) by contending that the Court’s opinions say that “there will always be partisan intent” in redistricting.  But not only does this mischaracterize the Court’s prior case law, it is not even a coherent response on its own terms: if partisan intent or partisan government purpose is constitutionally legitimate, then the defendants and intervenors should have argued that Justice Kennedy’s hypothetical statute would survive, not fail.

As the district court noted in its opinion, there is a difference between an “intent to act for political purposes” (which the Supreme Court has upheld), and an “intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference” (which the Supreme Court has not upheld, and which the Court repeatedly condemned in its early redistricting decisions).  If one accepts this distinction between types of intent, many of the objections raised today fall away.

  • Worried about “false positives” from symmetry metrics (from, for example, commission-drawn maps or court-drawn maps)? The absence of invidious partisan intent means that such a claim would fail.  The constitutional problem isn’t that any particular voter in any particular district faces poor odds; the constitutional problem arises when a district is designed to give particular voters poor odds.
  • Worried about explaining the outcome of court cases to the average man or woman on the street? Tell them that the Court overturned a law because the State classified citizens and/or suppressed citizens’ right to vote in an unconstitutional attempt to preordain the victory of state-favored candidates.  Ask the man or woman on the street how they feel about the Court then, and you’re likely to hear one of two responses: “Finally!” or “Wait, legislators were allowed to do that?  How was that ever constitutional?”
  • Worried about the Court’s ability to distinguish between legitimate state interests (such as enhancing competitiveness or pursuing proportionality) and illegitimate state interests (such as maximizing advantage)? Perhaps take a look at racial gerrymandering law, which distinguishes between using race to preserve electoral opportunities (legitimate) and using race to entrench electoral advantages (illegitimate), as Justice Ginsburg reiterated today.

Indeed, in discussing both standing and the merits, the important parallels between racial gerrymandering law and political gerrymandering law were on full display today.  Kennedy’s “overriding concern” language seems uncannily similar to the formulation used in racial sorting case law, and Gorsuch’s supposedly troubling “turmeric standard” goes by a more well-known name in constitutional racial dilution cases: the totality of circumstances.  This standard—like any spice rub—may vary a bit from batch to batch and set-of-facts to set-of-facts.

Nor would following these routine, black-letter principles of constitutional law threaten to plunge the Court headlong into any kind of institutional crisis.  Most of the troubling questions posed today (“Why EG > 7%?”) were premised on the dangers the Court might face under some kind of effects-only standard, which—standing alone—might reasonably seem divorced from the constitutional roots of the violation.  By refocusing on the constitutional illegitimacy of partisan voter suppression (as opposed to partisan voter persuasion), the various effects tests set out by the plaintiffs and the court below need not individually carry so much weight in the analysis.  As with constitutional racial vote dilution cases, the intent element of a claim is where plaintiffs will often flounder—and it is the causal connection of invidious intent to an otherwise permissible redistricting decision or action that makes the resulting effect unconstitutional.

The objection to all of this is, of course, that most or all politicians try to suppress their opponents when redistricting, and so an intent requirement isn’t a realistic barrier to a claim.  But this gets the institutional role of the Court and the progression of history backwards.  The behavior of legislators must evolve to satisfy what the Constitution demands.  The Constitution does not meter its demands to match the Court’s low expectations of legislators.  The Court did not hold racial suppression to be legitimate simply because many officeholders were openly racist and so a dilution claim was “unrealistic.”  The Court stated what the Constitution required, and the floor statements, districting decisions, and legislative conduct evolved to try and avoid the new claims.

Nowadays, many legislators gerrymander (racially and politically) in order to achieve partisan ends.  To claim that this is the natural and unavoidable state of affairs is to ignore the Court’s own role in shaping that state of affairs and the Court’s duty to prevent the rampant and open violation of voters’ constitutional rights.

Would recognizing the illegitimacy of invidious partisan intent eliminate all legislative attempts to pursue electoral advantages?  Of course not.  But one need not indulge Pollyannaish notions about the limits of judicial intervention to believe that political claims would—like racial claims—mitigate the frequency, cultural acceptance, and impact of such odious behavior.  “[E]ven legislators unarmed with political data and mapping software will have an instinctual sense of where their support lies and may be tempted to nudge boundaries in their favor.”  Proof of intent and effect may be difficult to cobble together in such instances, and minor transgressions are likely to go undetected and unvindicated.  But in such a world, the mere existence of a constitutional claim still acts as its own constraint on unlawful legislative behavior, forcing legislators to justify their decisions to the public on neutral and legitimate bases and encouraging legislative majorities to avoid overreaching for fear of losing in court.

This may seem like new territory, but the basic constitutional principles found in racial gerrymandering law apply with equal force in the case now pending before the Court.  Waiting on just the other side of Kennedy’s hypothetical is a clear logical progression: invidious partisan intent is unconstitutional; legislators here acted with such invidious intent; and voters’ ability-to-elect was negatively impacted because of the government’s targeting for suppression.

A new claim (or claims) might result in a fair number of plans being struck down initially as legislators adapt to new norms and expectations, but once the state of the law is settled the explanation for “the intelligent man on the street” becomes simple.  No gobbledygook, no baloney, and only a touch of turmeric.  That’s an outcome that would be good for voters and the Court’s reputation.

Courting Kennedy

As oral argument in Gill v. Whitford nears, everyone’s eyes are on Justice Kennedy.  Rick Hasen and Ned Foley have pointed out important issues and questions that may bear on the outcome.  With Hasen’s caveat that “I don’t think anyone outside the Court can know just yet [what Justice Kennedy is going to do],” I nonetheless offer one final bit of speculation.  Justice Kennedy seems to be looking for two interrelated explanations:

(1) why the claim presents a sound constitutional basis for intervention; and

(2) how that intervention doesn’t exceed the Court’s role in the separation of powers and federal design.

Despite heavy focus on the first question, giving Justice Kennedy a good answer to the second question may be just as important.  Justice Kennedy has repeatedly expressed concerns about the institutional role of the Court in both racial and political gerrymandering cases.  For racial gerrymandering, consider Miller: “Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions. . . . [Courts] must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.”  For political gerrymandering, consider Vieth: “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life.”

More recently, there’s Cooper, where Justice Kennedy joined Justice Alito’s dissent.  How did Justice Kagan lose Kennedy’s vote?  I suspect Kennedy protested the elimination of the alternative-map requirement.  Justice Kagan pointed out that “in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.”  But for all its constitutional shortcomings, the alternative-map requirement did provide a prudential buffer.  This was the centerpiece of Justice Alito’s attack:  “The alternative-map requirement . . . is a logical response to the difficult problem of distinguishing between race and political motivations when race and political party preference closely correlate.  This is a problem with serious institutional and federalism implications.”

In an especially foreboding pair of sentences, Alito wrote (and Kennedy agreed) that “if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives.  This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution.”

Kennedy is occasionally portrayed as a Justice who wants to intervene and is merely waiting for an acceptable standard.  Instead, perhaps we should view Kennedy as a Justice who is reluctant to intervene but could be compelled if a sufficiently persuasive rationale is identified.  In this telling, the answer to question (2) becomes more important.

Justice Kennedy is not alone in assuming that judicial involvement may exceed the Court’s proper role.  But as I note in a forthcoming essay [now published in the Cardozo Law Review de•novo], this assumption overlooks an important institutional point from none other than Justice Kennedy himself: “Abdication of responsibility is not part of the constitutional design.”  Clinton v. City of New York.  If the Constitution is violated, the Court has an important institutional role to play.  By failing to play its role, the Court has created a severe distortion of redistricting doctrine and caused immense harm to our constitutional system over the last few decades.

Nor should the defendants be permitted to hide behind arguments made in the name of federalism.  The Constitution’s federal structure was designed to prevent tyranny, safeguard liberty, and ensure that “state governments remain responsive to the local electorate’s preferences [and] state officials remain accountable to the people.”  New York v. United States.  Intervention would enhance responsiveness and accountability and protect federalism’s critical role in the constitutional design.  In weighing the deference owed state legislatures, “a vital constitutional principle must not be forgotten: Liberty requires accountability.”  Dep’t of Transp. v. Ass’n of Am. R.R. (Alito, J., concurring).

Two particular features of the plaintiffs’ claim help address questions (1) and (2) above and could nudge Justice Kennedy towards favoring intervention at the end of the day.

First, the district court opinion distinguished between routine political intent and invidious partisan intent.  Michael Kang, Justin Levitt, and I have argued that this distinction should be the primary focus of any partisan gerrymandering claim.  (To build upon the boxing analogy of Dr. Grofman and Dr. King, even an extreme knockout punch is permitted if it’s clean, but attempting to bite off an opponent’s ear is another story.  It wouldn’t help to argue that you only bit off a small piece of ear.)

While the effects inquiry is the undisputed star of the show in Gill (and the Gill claim requires a more rigorous effects showing), the intent distinction in Gill is still critical because it helps provide the Justices more coherent conceptual categories and helps provide a stronger constitutional justification for judicial intervention.  There is an obvious difference between the intent to beat your opponent by appealing to voters and the intent to beat your opponent by suppressing voters.  By reemphasizing just how out of sync invidious partisan intent (or, for Kang, partisan government purpose) is with the rest of the Court’s jurisprudence, the plaintiffs may be able to move Kennedy from a sense of reluctance to a sense of obligation.

Second, the plaintiffs’ approach only draws durable gerrymanders into question.  If one accepts the premise that only “extreme” gerrymanders are unconstitutional, this is a reasonable place to call foul.  Like the intent distinction above, a durability threshold sounds more in categories of harm (durable or not durable) than degrees of harm (more or less dilutive).

Even if one believes that gerrymanders do not need to be durable to be unlawful as a matter of constitutional theory, however, the effects requirement may still prove useful on Tuesday.  For if the aim is courting Kennedy—and the answer to question (2) ends up holding the balance—then an extra prudential buffer may be just what the Justice is looking for.

 

Raines Check: Legislator Standing and the Separation of Powers

Excited to have a post up today on Take Care Blog discussing Raines v. Byrd and the impact of separation-of-powers principles on legislator standing in the congressional emoluments lawsuit:

In Raines, a group of Senators and Representatives brought a lawsuit claiming that the Line Item Veto Act—which Congress had passed over their nay votes—was unconstitutional because it diluted their legislative power. . . . As the Raines Court observed, “the law of Art. III standing is built on a single basic idea—the idea of separation of powers.”  The decision revolved around this structural principle and was animated by a respect for judicial boundaries and the need to let the political process play out with each branch fulfilling its constitutionally assigned role.

In the congressional emoluments case, respect for structural concerns leads to the opposite result.  Failing to accord standing would undermine separation-of-powers principles; draw each branch beyond its proper constitutional sphere; and allow the Executive, the Legislative, and the Judicial branch to shirk their constitutionally assigned duties.

Head on over to Take Care Blog to read the full piece.

The Right to Withhold Consent: Legislator Standing and the Emoluments Clause

When CREW launched its emoluments lawsuit back in January, I—among others—wondered whether the plaintiffs’ standing theory would hold up in court.  At the time, I floated a different approach: “Why not add a Member of Congress as a plaintiff for a backup standing theory?  (i.e., ‘I have a right to vote on consent?’)”  Five months later, almost 200 Members of Congress have filed a lawsuit demanding precisely that.

While nonprofits, hoteliers and restaurant groups, and State Attorneys Generals have already brought claims, the congressional plaintiffs bring three new vital elements to the mix: a specific right provided in the text of the clause, a claim that aligns with the purposes of the clause, and an administrable and ministerial judicial remedy.

The Foreign Emoluments Clause prohibits the President, “without the consent of the Congress,” from “accept[ing] any present [or] emolument . . . of any kind whatever, from any king, prince, or foreign state.”  The purpose of the clause is to prevent foreign influence and corruption of our government, and the clause fulfills this purpose by subjecting any benefits flowing from foreign states to U.S. officials to a process of explicit congressional approval.  By preventing any emoluments from being received unless and until consent is provided, the clause provides a default protection against foreign influence absent positive approval by Congress.

The unique positive nature of the textual requirement establishes an individual right in Members of Congress to provide or withhold consent.  And, by requiring congressional approval before emoluments are formally received by the executive, the Constitution sets out specific structural constraints to ensure accountability and transparency.  Just as the Constitution’s “advice and consent” provisions play a critical structural role in the separation of powers, the Foreign Emoluments Clause protects public interests and individual liberties by mandating certain procedural checks and balances.

The positive nature of the structural consent requirement also demonstrates why the clause does not present a “political question.”  As Joshua Matz has ably pointed out, the argument that Congress may take action if it so desires—and therefore no judicial remedy is permitted or required—would “rewrite and invert” the clear textual command of the clause.  The clause’s default setting in the absence of congressional action is to prohibit the acceptance of emoluments, not permit them.  Congressional inaction creates an absolute constitutional bar.

The congressional lawsuit also reflects a close fidelity to constitutional principles when one considers the implied cause of action, the relevant zone of interest, the potential remedies available, and the separation-of-powers questions raised by judicial intervention.  However much hoteliers may be harmed by (and have standing due to) unlawful competition, no one has argued that the clause was included in the Constitution because the Founders were worried that the President of the United States might undercut the wine sales and conference bookings of his fellow citizens.  As such, one might argue (as the DOJ has) that an implied cause of action should not arise in such circumstances.  Nor might federal courts feel particularly comfortable as a remedial matter ordering the President to rearrange his financial affairs in a particular manner or making delicate substantive judgment calls about which emoluments pose a threat of corrupting foreign influence.

Yet, the Founders did create a mandatory mechanism to protect the public at large from these threats, and the remedy is to protect the procedural right of legislators to grant or withhold consent. Thus, as far as remedies are concerned, the courts need only define “emoluments” and prohibit the president from receiving them absent congressional approval.  A benefit meeting the definition could be held in trust until an affirmative vote of Congress allows the President to “accept” it.  Thus, the injunctive relief would be strictly ministerial and administrative, with sensitive political judgments reserved for the legislature.  Such an approach would vindicate the rights granted to Congress, adhere to the structural balance struck by the clause, and protect the purposes for which the clause was adopted while ensuring that the judiciary did not intrude upon the proper executive or legislative domains in the process.

The Foreign Emoluments Clause fulfills critical public purposes through a mandatory process designed to ensure transparency and accountability through structural constitutional requirements.  These checks and balances create a default prohibition on the receipt of foreign emoluments in the absence of congressional consent.  Individual Members of Congress possess a constitutional right to provide—or withhold—that consent, and if the Constitution’s default prohibition is being violated in the interim, those Members should be able to seek a judicial remedy.  The lawsuit filed today would provide just that.