Friday, January 20, 2012

Three Cheers

Gerard N. Magliocca

Given how often the Supreme Court gets bashed for being political or hopelessly fractured, it is worth noting that the Court was unanimous (in result) on two recent cases on hot-button issues--the ministerial exception and redistricting in Texas. Maybe that's a fluke, but some credit should be given to the Chief Justice and his colleagues for finding common ground when they can.


With respect to the Texas redistricting case, I have thought about it as I read Tabatha Abu El-Haj's "Linking the Questions: Judicial Supremacy as a Matter of Constitutional Interpretation" available via:

in particular its Part "IV: Race and Representation--Applying the Framework." With respect to the role of Congress, the article reminds us of Article I, Sections 4 and 5 of the Constitution, which may trump Judicial Supremacy.

By the Bybee [expletives deleted], what is the total scorecard of the Roberts Court for unanimous decisions (whether or not in result only)? Two swallows does not a summer make. Perhaps a comparison should be provided for 5-4 Roberts Court decisions.

The underlying decision was so obviously arbitrary and partisan, that the Supremes really had no choice.

Given that the GOP legislature's gerrymander already concentrated minority Dems, there was no rational basis for the claim that it made it less likely to elect minority candidates. In reality, it made it less less likely to elect Dems.

Our yodeler may be suggesting that the TX legislature's maps will be final. However, the case was sent back to the trial court with instructions to focus on such maps, and perhaps fix them as the law may provide (somewhat contrary to Justice Thomas' view to accept such maps period). The fat lady has not yet sung.

Score one for Paul Clement.

"Given that the GOP legislature's gerrymander already concentrated minority Dems, there was no rational basis for the claim that it made it less likely to elect minority candidates. In reality, it made it less less likely to elect Dems."

Quite true, the Republicans are enthusiastic about the creation of minority-majority districts; Given the lopsided Democratic vote in such districts, it's a great way of causing Democrats to waste their votes "bouncing the rubble".

The judicial lines were less about Section V issues than maximizing Democratic seats. If they're forced to keep the district lines that don't violate Section V standards, they're not going to be able to do much of that.

Mixed bag. The SC is less fractured than people assume, at least, as a whole.

The ministerial exemption case is somewhat atypical given religious liberty gets support from both sides & the ruling is a bit too minimalist -- it leaves open various tricky problems.

The Texas case arguably is political too. They found a way to quickly dispose of the case (Rick Hasen said it used Kagan's idea ... see his Election Law Blog) but perhaps the justices were influenced politically too.

Roberts does find ways to obtain consensus. Not sure if on balance he did it more than his predecessor and/or in a better way. The different make-up of the Court does help.

Adam Liptak's "Justices Reject Election Maps By U.S. Court" in Saturday's NYT (1/21/12) provides quite a bit of detail on the decision and the issues involved in the several TX cases addressing redistricting. The NYT editorial "Redistricting in Texas" of the same date includes this:

"But in the Congressional district maps drawn up by the Republican-controlled Texas Legislature, the number of districts in which minorities could elect a candidate of their choice dropped to 10 districts from the current 11, and the number of safe Republican seats rose to 26 from 21. In trying to fix this imbalance, the district court's plan created three new districts in which minority voters would be the majority, with the Democrats possibly gaining four seats."

Is this "intentional discrimination" that the district court may address in working from the Republican Legislature's maps under Section 5? As I noted earlier, the fat lady (blind justice?) has not yet sung.


The Dem map spread minorities out and made it less likely any will be elected, even if you believe the theory that minorities vote as a block.

Our yodeler equates the U.S. district court's map as the Dem's map? While minorities may not vote as a block, the TX Republican Legislature thinks majorities do, ergo, their map. If our yodeler sincerely believes that:

"The Dem map spread minorities out and made it less likely any will be elected, ..."

then he should be castigating the Supreme Court for its unanimous decision that would take away a bonanza for the Republicans in TX.

Perry v. Perez seems less than unanimous with Thomas's dissent.

Or does the rest of the Court agree with him that preclearance is unconstitutional?

There have also been a spate of odd couple concurrences and dissents these term.

Interesting times.

My own analysis of the Texas redistricting case (and totally wrong prediction) can be seen in the SCOTUSblog community. Remember that the Texas court has two options: to justify its maps with preliminary injunction-level findings or to defer to the legislature. While the better part of valor is to do both, if the DC court releases findings relatively soon, the Texas court could easily supplement them with its own Section 3/constitutional findings and release a map much closer to its first attempt.

My feeling about the unanimity is that the "liberal" justices and Kennedy decided to wait for the facts to catch up with the arguments. I think they know that they are in a fight for survival of the Voting Rights Act and want a strong factual record to hold up against ideology. I think either court could make a finding of discriminatory purpose and intent on the part of the legislature that would be a game-changer. Remember, Sotomayor is in the conference, the raza will be heard.

What we think, or what we know, or what we believe is, in the end, of little consequence. The only consequence is what we do.
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