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.

Cooper v. Harris: Proxy Battles & Partisan War

Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases.  A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris.  The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close.  The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago.  Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

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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.)

Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?

On March 1st, the Supreme Court issued its decision in Bethune-Hill.[1] While the Court’s decision to remand eleven of the twelve Virginia legislative districts wasn’t too surprising given Kennedy’s skeptical tone at oral argument, what was surprising was the virtually unanimous acclaim from the election law community.[2] Taking a page from Stephen Colbert, the only question seemed to be whether Bethune was a great decision or the greatest decision.

As Marc Elias and Rick Pildes pointed out, the holding that race and traditional criteria need not conflict to find predominance in racial sorting cases resolved a question with major implications for litigants in the field. This will make the standard easier to satisfy and undoubtedly lead to more cases.   Michael Dorf called it a “surprisingly liberal 7-1 result,” and Elias described it as a “7-1” victory before stating that it was “[a]ctually, more like 8-0.”

But this superficial consensus among the Justices should give pause to those who care about the survival of the Voting Rights Act (VRA). The sorting claim was developed by opponents of the VRA as a weapon to cut down districts designed to protect minority voting power. Only recently have voting rights lawyers begun to wield this weapon for their own purpose: striking down districts that pack minority voters based on the pretext of “complying” with the VRA. At the end of the day, the claim remains a weapon that can be used to advance or undermine the VRA, and Bethune has sharpened the knife for both sides.

Perhaps the most revealing sign of these crosscutting currents was Chief Justice Roberts’ presence in the majority. Roberts has long opposed Section 2’s results test and previously subscribed to the views of Justices Alito and Thomas regarding predominance, agreeing with Justice Scalia in LULAC that the intentional creation of a majority-minority district alone necessarily triggers strict scrutiny. So why the change? One explanation might be that the Chief Justice is building an illusion of consensus similar to that found in Northwest Austin ahead of a more sweeping and controversial decision yet to come.[3]

With more redistricting litigation ahead, the key to preserving the VRA will be handling the Bethune holding with care. Below I examine the good, the bad, and the ugly about Bethune and offer some thoughts on how it might be used to help enforce the VRA and fend off challenges to the VRA rather than inviting its demise.[4]

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“FairVote and Leading Maine Civic Groups File Briefs Defending Ranked Choice Voting”

The fight for Ranked Choice Voting (RCV) in Maine continues!  Proud to have worked with FairVote on this brief.

With all the recent news on redistricting (which will be addressed in a couple of forthcoming posts), it’s important not to overlook the significant headway that RCV is making across the nation.  As FairVote points out, “[t]here are now 18 states with bills advancing ranked choice voting.”  In fact, the Utah House just today voted 59-12 to pass a bipartisan bill that would require the use of ranked choice voting for nearly all Utah elections.

Want to know more about how Ranked Choice Voting can improve our elections?  Head on over to FairVote to find out… and then take action!