Gibberish in Supreme Court opinions:: Given that John Roberts is scarcely stupid, what explains the stupidity of part of his opinion in Rucho?

John Roberts is, not a stupid man, which means that astonishing sentences and analytic gaps in his opinions must be interpreted with special care.  Consider various possibilities:  One, familiar to first-year law students, is the belief that our own failures of immediate understanding are ascribable to our own intellectual defects.  Judges, especially on the Supreme Court, are by definition unusually capable, even brilliant.  Deep study will therefore unlock the mysteries of the law and, along the way, reassure us about the capacities of those who purport to judge us.  The second, of course, which I emphasize to my own students, is that the perceived failures are very real, that judges, including members of the U.S. Supreme Court, should not be the beneficiaries of any significant “halo effects.”  Some are indeed brilliant, some are definitely not.  And even the former can make remarkable mistakes, so that it is useful to try to figure out why. 

One explanation, of course, as Mark Tushnet has recently suggested with regard to Justice Gorsuch’s questionable presentation of the facts of Schechter Poultry, is that the Justice in question, however smart (as demonstrated, perhaps, by attaining a Ph.D. and publishing a book), may also be in the grips of a particular ideology that leads to a tendentious description of the external world.  (Indeed, this might be regarded, if one is a “social constructionist,” as the basic meaning of “ideology.”  The problem, of course, is to agree on what might constitute an “ideology-free” description of the external world.) Another, perhaps, is that justices who feel some special need, unlike, say, Justice Thomas, to demonstrate their fidelity to often incoherent precedents, will inevitably write near-gibberish as a result.  Or, of course, there is the practical problem of “getting to five” (and, on occasion, even “to nine”), i.e., the necessity of writing dubious paragraphs, in terms of any coherent overall argument, in order to gain the vote of a colleague.  See, e.g., Scalia’s totally unexplicated announcement in Heller that existing federal gun control laws are perfectly all right, presumably offered in order to pick up Kennedy’s necessary vote.

So let me turn now to the opinion authored by Chief Justice Roberts in Rucho v. Common Cause, the “partisan gerrymandering case.”  Most of it strikes me as basically a restatement of Frankfurter’s anguished dissent in Baker v. Carr, correctly warning his colleagues that the Court was about to enter a “political thicket” from which it would never escape.  Although there are a few hardy souls—I think of my friend Earl Maltz at Rutgers Camden Law School—who continue to assert that Baker and, even more certainly, Reynolds v. Sims, were wrongly decided, I take it that both have been absorbed into the canon under the rubric of the constitutional necessity of “one-person/one-vote.”  As I wrote over fifteen years ago, in an article published in the U.N.C. Law Review subtitled “A Mantra in Search of Meaning,” the Court has never deigned to offer a coherent explanation of what exactly that term is supposed to mean.  Indeed, it is a self-evident truth that equal population is not remotely identical with an equal number of voters, so that, by definition, the “weight” of a vote will differ among districts with equal populations.  (Just ask yourself, assuming the “weight” of your vote is the only consideration, whether, assuming equal total populations, you’d rather live in a bedroom suburb with thousands of children, on the one hand, or, instead, in a retirement village consisting only of fellow senior citizens (who tend to have a high turnout rate, in addition), or in a community that included, say, a prison housing thousands of convicts, or, for that matter, a city with many resident aliens (let alone undocumented aliens).  In any event, though, the mantra continues to be part of our working doctrine of American constitutional law, and judges, including members of the Supreme Court, are expected to apply it.

The issue in Rucho, of course, is whether the mantra has implications for nakedly partisan gerrymandering. The answer, according to Roberts, is no, since the latter is completely non-justiciable, unlike “ordinary” districting.  So we come to the paragraphs that made me scratch my head about Roberts’s analytic abilities and, therefore, the degree to which “we,” whether defined as professional legal academics or ordinary citizens, should have much real regard for even the most eminent of judges.  They are found at p. 20 of the slip opinion:

Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support. More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. (emphasis added).

To put it bluntly, and ungently, this is indeed gibberish.  The one-person/one-vote standard is “easy to administer as a matter of math” only because, as already suggested, the equal population standard is totally unconnected, as an analytic matter, to the purported standard, as described by Roberts, that “each person must have an equal say” or that “each vote must carry equal weight.”  To say that “in other words,” one-person, one-vote” is synonymous with the proposition that “each representative must be accountable  to (approximately) the same number of constituents” is indefensible as a matter of ordinary logic and syntax, though, of course, it is perfectly sensible in the Alice-in-Wonderland world of legal doctrine, where judges can offer de-facto “performative utterances” that by virtue of their own authority, enable X to be synonymous with Y.  I would go so far as to assert that no thoughtful person could really believe that the “in other words” follows, save in Wonderland.  At the very least, such an assertion rests on an entirely underdeveloped theory of what it means to call someone a “representative” and to suggest that “representatives” are in fact, as an empirical matter, “accountable” in some specifiable manner, to all their “constituents,” whatever, say, their party identity, their eligibility to vote, or, perhaps, even their status as citizens.  No serious person would assert such a thing.

So the serious question is whether John Roberts should be regarded as a serious person when writing such drivel  This leads me to another observation:  His opinion is totally devoid any reference to the copious literature developed by political scientists or political theorists about the theory and practice of what we’d like to think of as “representative democracy.”  Instead, we are treated to summaries of the purported “lessons” taught not “by experience,” one of the actual mantras of the Founding generation, but, instead, by prior justices writing purportedly relevant opinions.  That is, we are supposed to believe that justices past and present are genuine “authorities” on how the American political system actually works.  Roberts feels completely entitled—perhaps this comes with the job—to offer pronouncements that, to put it mildly, are controversial among the community that actually studies the empirics of our political system.  Consider his assertion, p. 24, that “Many voters split their tickets.”  How does he know?  All research that I am familiar with suggests that ticket splitting is a declining phenomenon.  Indeed, in my book Framed, I discuss ticket-splitting (pp. 237-239) and even include a fine table (not my own creation) that demonstrates its declining nature.  It is, frankly, shocking that such ignorance is now enshrined in a majority opinion that will, I am afraid, mislead impressionable law students who wrongly believe that Supreme Court opinions can be taken seriously when they make assertions about the world outside the cloistered chambers of the Justices. (Again, think of Tushnet’s evisceration of Gorsuch regarding “sick chickens.”)  There is no reason to take Roberts’s assertion with any greater seriousness than the assertions of one’s crotchety relative at Thanksgiving.

I want to emphasize that my criticism (perhaps bordering contempt) for this aspect of Roberts’s performance in Rucho is entirely separate from my views about the outcome of the case.  There was nothing stupid about Frankfurter’s dissent in Baker, nor is there anything stupid about the suggestion that taking on the problem of partisan gerrymandering would exponentially increase the Court’s need to wander in the “political thicket,” with inevitable rancor and polarization.  Probably not surprisingly, I am persuaded by Justice Kagan’s eloquent dissent that the case should have been decided differently and that the Court is ultimately turning a blind eye to what constitutes a genuine threat to our constitutional order.  I must add, though, that I have my qualms about her own approach, which relies very heavily on whether a particular redistricting map is an “outlier” among literally hundreds of alternative possibilities and, therefore, explicable only as a manifestation of a desire to maximize raw political control of the redistricting process.  My fear, frankly, is that it works to correct only the most truly egregious of partisan gerrymandering, as found in North Carolina and Maryland, while leaving anything short acceptable.  And I fear that a contrary decision would have served to suppress  a vitally necessary national conversation about what in the 21^st century constitutes the most desirable form of “representative democracy.”  Frankfurter was legitimately worried, like his mentor James Bradley Thayer, that reliance on judicial review would serve effectively to sedate the pubic by encouraging them to believe that the Court would adequately respond to the challenges facing the country.   

She, like Roberts, goes out of her way to say that the Constitution in no way requires any form of “proportional representation.”  One might even agree with that as a proposition of formal analysis of constitutional meaning.  But I have become convinced that our reliance on single-member districting, with first-past-the-post victors, is at least as much a threat to our political order as what North Carolina and Maryland did.  As I suggested in an earlier post, one welcome result of the decision in Rucho would be a genuine mass movement—think in this context of the movement for woman’s suffrage in Great Britain and the United States in the early 20^th century—that threatened genuine disruption if political institutions did not reform themselves.  I continue to support a new constitutional convention and believe that designing a suitable electoral system, which would include some form of proportional representation, would be one of the most vital issues to discuss.

So, in conclusion, I think that a “reasonable person” can agree with the majority’s conclusion in Rucho. and, indeed, use the decision as the basis for a welcome mass movement demanding far more significant change than the Supreme Court wold ever require.  But I would hope that the same person would agree that the cited paragraphs demonstrate, if not stupidity, that at least an unfortunate tendency toward almost literal mindlessness and judicial arrogance about some of the most important realities that face us as a political system.