Category: Balance of Powers

Atoning for Garland: An 18-Year Gorsuch Term

After taking the unprecedented step of denying a president the opportunity to fill a Supreme Court vacancy during his term, the Senate majority now stands on the brink of another: invoking the nuclear option. Judge Neil Gorsuch finds himself at the center of this historic aberration, his candidacy itself—and now his likely appointment—a byproduct and reflection of a complete breakdown in political norms and traditions.

Just because the breakdown is indefensible[1] and inexcusable does not mean it is unexplainable: the political stakes on both sides are enormous and are increasingly viewed as existential. In fact, given the power of Supreme Court seats to define the direction of the country for a generation, it is some wonder this collapse did not come sooner. And here, perhaps, is where Judge Gorsuch could do some useful precedent-shattering of his own and make the asterisk by his name in the history books a more positive one: he could serve an 18-year term.

The immense political pressures that surround the nomination and appointment process are a direct result of the influence and unpredictability of the Justices’ lifetime terms. Lifetime tenure on the highest court in the land is a rarity on the world scene, and hardly necessary to secure judicial independence. (The Framers gave Supreme Court Justices life tenure in an era when the average American could expect to live only thirty-five years.) Instead, as Calabresi and Lindgren propose, the Justices could serve staggered 18-year terms, with vacancies occurring at the beginning of the summer recess in every odd-numbered year (occurring during the first and third year of a President’s four-year term).

If Senators knew that each President would have the opportunity to appoint two Justices—no more, no less—during each term in office, then the stakes at each confirmation would recede. And, as a matter of principle, it seems far more defensible for each President to have the same impact on the judiciary. (Why, for example, should it be that Clinton, Obama, and both Bushes only had two appointments, whereas Reagan and Nixon each had four?)

The difficulty with instituting judicial term limits is that no party will unilaterally disarm when their President is in office. Even if both parties agreed with the concept in theory, neither party is likely to push for a constitutional amendment while they hold the keys to the Court. This is why nothing like this seems to be on the horizon.

And this is precisely why Judge Gorsuch could—and should—take on the task. While a politically prescribed system of term limits might be preferable, judicial traditions could replace (and outlast) those crumbling in the political branches. As an uninvited beneficiary of broken political precedents, Gorsuch is uniquely placed to set down new judicial ones. Only eight other individuals would then need to be convinced that lifetime Supreme Court terms have evolved from a bulwark of democracy into an albatross.

In our nation’s infancy, President George Washington independently decided to retire after two terms, beginning a tradition that would last until 1940 and be preserved by constitutional amendment just a decade later. At a time when precedents, traditions, and norms are collapsing at an alarming rate in the face of unbridled partisan power, it would be notable for someone to forgo their own interests for the good of the country. Perhaps it’s naïve to even entertain such a hope. After all, the decision would surely be unprecedented.


[1] The rule that there should be no appointments during “an election season” runs into some pretty thorny questions pretty quickly. When does the “election season” begin? Does the rule apply based on the occurrence of a particular event? If so, is Trump’s filing with the FEC and decision to hold campaign-style rallies already enough?  Or does it require a formal announcement?  If so, can a candidate formally announce and thereby invoke the new rule starting today?  Or, if the rule is just based on time rather than a specific event, is it a one-year rule?  Is it a two-year rule?  How long is an “election season,” exactly? The reality, of course, is that there is no “principle” behind what happened to Judge Garland – it was pure politics. (One can hardly imagine the same Senate majority insisting on honoring this “election season” principle were another Justice to retire or pass away in the run up to the 2020 election.)

Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy

This weekend, William & Mary will host an impressive symposium with the daunting task of “lay[ing] a definitive academic foundation” for redistricting law ahead of the 2020 census. The topic could not be more pressing. The Supreme Court continues to consider Bethune-Hill[1] and McCrory, is holding Covington and Harris[2] in limbo pending those decisions, and will almost assuredly see the historic Whitford case land on its doorstep soon. In a weekend that is sure to reveal a number of disagreements on critical questions, perhaps all attendees can agree on one thing: “The most charitable thing to say about the current state of . . . gerrymandering law is that it is a big mess.

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3]  [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

  Racial Dilution (Statutory) Racial Dilution Political Dilution Racial Sorting Political Sorting
Authority[4] VRA & 15th 14th 1st and/or 14th (Whitford) 14th 1st and/or 14th

(“Why this district?”)

No showing required

Device may violate VRA despite having political purpose

Device enacted or maintained “to minimize or cancel out the voting potential of racial or ethnic minorities” (Bolden) Device enacted or maintained to “to minimize or eliminate the political strength of any group or party” (Gaffney; Bandemer (citing Bolden)), or

“to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation” (Whitford)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

Political objective does not change racial basis of sort. (Bethune)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

(“Why this person?”)

Evidence of racial basis may favor causation finding, if legally necessary[6] No showing required; but relevant to proving intent No showing required, but relevant to proving intent “State has [predominantly] used race as a basis for separating voters into districts.” Miller

(i.e., racial basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Miller, Bethune)

State has predominantly used political data as a basis for separating voters into districts (i.e., political basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Bethune)

Effect (Preconditions) Gingles Test (threshold showing that device can impair equal ability to elect)

No strict threshold for finding legally significant polarization (Gingles)

Gingles Test

See Martinez, 234 F. Supp. 2d 1275 (applying Gingles)

No strict threshold for finding legally significant polarization (Gingles)

“Modified Gingles” Test (threshold showing could be Whitford efficiency gap, Sam Wang’s approach, Bernie Grofman’s factors, etc.)

No strict threshold is necessary

Effect (Liability) Totality of Circumstances Totality of Circumstances

Burden shifts if plaintiff makes prima facie case (Arlington Heights)

Totality of Circumstances

Efficiency gap is weighty evidence, but not dispositive (Whitford)

Burden shifts if plaintiff makes prima facie case (Whitford)[7]

No showing required

(Expressive and representational harms implied when predominant basis is race)

No showing required

(Expressive and representational harms implied when predominant basis is politics)

State Justifications (Permissible)[8]

See generally, Parsons.

Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC)
State Justifications (Impermissible)[9]

See generally, Parsons.

Racial, Partisan, or Incumbency Advantage (Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune) Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.


The Year Ahead in Racial and Political Gerrymandering Law

When President Obama called for an end to gerrymandering in his final state of the union, it was a rare moment of primetime coverage for a typically arcane subject: redistricting. But this topic is getting increased attention, especially after 97% of incumbents who chose to run were returned to office this year despite the electorate’s strong “anti-establishment” sentiment. Political writers have called the last round of post-census redistricting “the most audacious political heist of modern times,” celebrities (such as Zach Galifianakis) have taken up the cause, and activists in several states have legislative reform efforts underway.

The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.


“How American Politics Went Insane”

Jonathan Rauch for The Atlantic.  A great piece on why we need to stop vilifying the parties and candidates and actually take a hard look at the incentives that motivate their behavior.  The political incentives you build into the system shape the results you get out of the system.

Chaos syndrome is a chronic decline in the political system’s capacity for self-organization. It begins with the weakening of the institutions and brokers—political parties, career politicians, and congressional leaders and committees—that have historically held politicians accountable to one another and prevented everyone in the system from pursuing naked self-interest all the time. As these intermediaries’ influence fades, politicians, activists, and voters all become more individualistic and unaccountable. The system atomizes. Chaos becomes the new normal—both in campaigns and in the government itself.

Our intricate, informal system of political intermediation, which took many decades to build, did not commit suicide or die of old age; we reformed it to death. For decades, well-meaning political reformers have attacked intermediaries as corrupt, undemocratic, unnecessary, or (usually) all of the above. Americans have been busy demonizing and disempowering political professionals and parties, which is like spending decades abusing and attacking your own immune system. Eventually, you will get sick.

I don’t agree with all of the diagnoses (or prescriptions) in this article, but it’s a helpful reminder on the law of unintended consequences (and a warning for reformers to act with care).  You can’t simply prohibit the darker angels of human nature; you have to design a system that encourages our best instincts and channels our worst instincts so that both are made to be productive and advance the common good.  This instrumentalist approach was central to the design of the Constitution:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

James Madison, Federalist No. 51.