Sunday, August 11, 2019

Trump's Responsibility for El Paso Massacre

      President Trump's perfunctory denunciation of "racism, bigotry, and white supremacy" after a young white supremacist's massacre of Mexicans in El Paso would have been too little, too late even if it had been believably sincere. But Trump's frozen features as he read prepared remarks from a teleprompter [August 5] made clear to everyone, white supremacists included, that he was merely going through the motions.
      Trump has been guilty of racist conduct from his earliest days in the family business, as seen in the settled fair housing discrimination case in the early 1970s. Moreover, he has used racist rhetoric from his first days as presidential candidate and, after his election, as president to hold and rally his political base--as, for example, in calling for three black, natural-born U.S. citizen members of Congress to go back to where they came from.
      With his re-election campaign under way, Trump now can ill afford to alienate any part of his political base, including those who make no secret of the racist views that motivate their anti-immigrant outbursts. Trump regularly promotes these views at his political rallies, as documented in a compilation by USA Today. The newspaper found that in 64 rallies since 2017, Trump had referred to Central American and Mexican migrants at least 500 times in "incendiary terms," such as "invasion," "animal," and "killer."
      Admittedly, Trump's reckless encouragement of anti-immigrant sentiment would not qualify as legal incitement for Patrick Crusius's deadly shooting spree in predominantly Hispanic El Paso [August 3]. But the president bears a degree of moral responsibility for propagating and normalizing the kind of anti-immigrant views that turned the young community college student into a vigilante taking up arms against what the white supremacist fringe calls "white replacement."
      In fact, Crusius aped Trump's terminology in what is believed to be his online posting before the shooting that he was trying to stop "the Hispanic invasion of Texas." That description of present-day immigration from south of the border can come from no other source than Trump: in three decades of sharp debates about immigration policy in the United States, anti-immigration politicians and advocacy groups had never before couched the issues in terms such as those Trump has used.
      Trump sought to absolve himself of any responsibility, legal or moral, by blaming Crusius' crime on mental illness, the favored explanation from the gun lobby and their supporters for mass shootings. With no psychological training nor any evident ability in self-analysis, Trump is peculiarly unqualified to diagnose Crusius at a distance. Indeed, mental health experts quoted in news coverage appeared to agree that Crusius showed no symptoms of diagnosable mental illness.
      As for policies to address mass shootings, Trump used his prepared remarks to bat away the natural thought that perhaps guns are to blame. "Mental illness and hatred pull the trigger. Not the gun," he recited. Statistics cited by the CNBC journalist John Harwood on Twitter suggest otherwise. Of the 40 deadliest mass shootings in the United States since 1949, 26 have occurred in the 15 years since the Republican-controlled Congress allowed the assault weapons ban enacted in 1994 to expire in 2004: only two during the decade when the assault weapons ban was on the books.
      With public opinion coalescing around some kind of legislative response, Trump appeared at week's end to be accepting some form of stronger background checks for gun purchasers. Even if enacted, stronger background checks might do very little to prevent the next mass shooting. Apart from a higher minimum-age requirement, Crusius seemingly had nothing that he would have needed to list on an application that would have disqualified him from purchasing an otherwise legal weapon.
      Trump went so as to claim credit for the yet-unenacted proposals to keep guns away from or take guns away from people who pose dangers to themselves or others. "“I think we’re going to come up with something, something really good, beyond what’s done so far," he remarked, referring to background checks or so-called red flag laws.
      As for an assault weapons ban, however, Trump saw no prospects. " “I can tell you is there is no political appetite for that at this moment," he told the White House press pool in unscripted remarks on Wednesday [August 7].
      The week ended with Trump reportedly resentful of the less-than-glowing reviews he received for his visit to El Paso, highlighted by the stinging criticism of his mugging for the cameras as Melania held an infant orphaned by the killing of his two parents in the massacre. As a reminder, President Obama showed more presidential leadership seven years ago after the mass shooting at the Sandy Hook School in Connecticut. He was somber and respectful at a vigil two days later and, four years later, was shown in photographs to be tearing up as he talked about the episode.
      Racism and violence have been inherent in Trumpism from the start of his preposterous claim to make America great again. Note that the crime Trump claimed during his campaign he could commit with legal and political impunity was itself a gun crime: shooting someone on Fifth Avenue in New York City. One step to try to prevent the next mass shooting would be at the least a change in presidential rhetoric or, better, a change in the presidency itself. For that, it appears a country in grief must wait yet another year.

Sunday, August 4, 2019

Time to Make the Supreme Court Great Again?

      President Trump and the Senate's Republican leader Mitch McConnell have both listed Trump's record-setting appointments of more than 140 federal judges as one of Trump's most important accomplishments in office. Many of those judges, like Trump's two Supreme Court justices, were confirmed by party-line votes in the face of strong opposition from Democrats and liberal advocacy groups, but the issue of judicial appointments went all but completely unmentioned in six hours of Democratic presidential debates last week [July 29, 30].
      The American Constitution Society (ACS), the liberal counterpart to the conservative Federalist Society, led a coalition of groups in urging CNN moderators beforehand to ask the assembled Democratic hopefuls about Supreme Court and judicial appointments, but to no avail. Media commentators noted critically afterward that the CNN moderators appeared to be selecting issues with an aim to highlighting disagreements among the Democrats instead of their shared disagreements with Trump and his policies.
      With the debates over and judicial appointments unmentioned, a truncated debate broke out on Twitter over the political value or risk for Democrats in making the Supreme Court and judicial appointments an issue in the 2020 campaign. Historically, a half-century of presidential campaigns shows that Republicans from Richard Nixon to Donald Trump have made the high court their winning issue time and again; Democrats have tried only weakly to use the issue to mobilize Democratic and independent voters.
      Democrats can and must do better in 2020, according to leading groups on the legal left. They want the eventual Democratic nominee to go beyond bland promises to appoint justices in the style of Brennan and Marshall and to go all in by backing structural reform, such as increasing the size of the Court, to neutralize the Republican justices' current majority.
      Aaron Belkin and Sean McElwee, director and polling director respectively of Take Back the Court, argued in an article written for Salon that Democrats must "recognize and reckon with the fact that the high court is a political institution that has been hijacked by the GOP to advance a partisan agenda on behalf of corporations and billionaires." Belkin and McElwee go on to say that it is "an imperative that  Democrats make the case to voters that democracy cannot be restored unless the court is reformed."
      Belkin and McElwee do not cite particulars, but the Court's end-of-term decision to close federal courts to legal challenges to the unpopular practice of partisan gerrymandering may leave it peculiarly vulnerable to attack for being uninterested in protecting voters' rights. Belkin and McElwee in fact promise a forthcoming report that will show Chief Justice John G. Roberts Jr. to vote just as conservatively as his conservative colleagues and his reputation for centrism "wholly at odds with his record."
      Among the two dozen Democrats currently in the running for the presidential nomination, 11 say they are open to expanding the size of the Court. One of those, Pete Buttigieg, has gone further by expressing interest in the proposal by two academics to expand the number of justices to 15. The balanced bench proposal by the two professors calls for five justices from each of the two major political parties and the other five chosen from sitting federal appellate judges by the other 10 by either unanimous or supermajority vote.
      Any discussion of changing the size of the Court will lead opponents to draw parallels to President Franklin D. Roosevelt's ill-fated "Court packing" proposal at the beginning of his third term in the White House. Present-day advocates of structural reform will be hard pressed to counteract the lesson drawn from that episode, but the distinction can be drawn by noting, for example, McConnell's role in blocking President Obama's nomination of the widely respected moderate appellate judge Merrick Garland in 2016.
      McConnell's role in keeping the vacancy open through the November election allowed Trump to use the issue to great effect, according to post-election exit polls. The Supreme Court was the most important issue for 21 percent of voters, according to the CNN poll, and more than half of those voters went for Trump.
      Democrats in 2020 need to make the Supreme Court their issue. They can do that by emphasizing the role that the Roberts Court has already played in weakening protections for workers and consumers and the role that an unreformed Court could play in undoing policies to address health care, climate change, and gun safety. Democrats should also promise to take judicial appointments out of the hands of the Koch Brothers-financed Federalist Society and promise to appoint fair-minded judges with no ideological agenda other than protecting liberty and justice for all.
      Senators from both parties are certain to accuse the other party of politicizing judicial appointments. History shows that Republicans have done that for 50 years, but Democrats not so much. Four of the Republican-appointed justices on the current Court were confirmed in party-line votes by historically narrow margins, with fewer than 60 votes each. All four of the Democratic-appointed justices came to the Court with reputations as judicial moderates and won confirmation by wide margins: Sotomayor and Kagan with more than 60 votes each and Ginsburg and Breyer with 96 and 87 votes respectively.
      It is time to make the Supreme Court great again. That could be and should be a winning message for Democrats in 2020, with or without a cap.

Sunday, July 28, 2019

In Border-Wall Dispute, Divided Court Bows to Trump

      The Supreme Court's newest justices, Neil Gorsuch and Brett Kavanaugh, both presented themselves to the Senate and to the American public as committed originalists and textualists, always true to the text and original meaning of the U.S. Constitution. But they showed those professed views to be mere pretense on Friday [July 26] in a behind-the-scenes separation of powers dispute between Congress and President Trump.
      Gorsuch and Kavanaugh voted along with their three Republican-appointed colleagues to allow the Trump administration to violate the text and spirit of the Constitution by diverting money Congress appropriated for the U.S. military to the building of President Trump's wall along the U.S.-Mexico border. The Court's 5-4 decision came on what the administration called an emergency request to lift an injunction issued and upheld by two lower federal courts and openly flouts Congress's constitutional control over federal spending.
      In their new book on the Kavanaugh confirmation, conservative journalist Mollie Hemingway and conservative activist Carrie Severino describe Kavanaugh's record on the D.C. Circuit appeals court as always faithful to "the text and original meaning of the Constitution." In fact, Kavanaugh's 300 opinions on the D.C. Circuit dealt mostly with the stuff of statutory interpretation and administrative rulemaking, not constitutional law.
      The dispute before the Court last week, however, was a pure question of constitutional law on provisions covered in the first week of Con Law I: Separation of Powers. Trump was claiming the authority to spend military appropriations on the non-military purpose of constructing the wall along the United States' southern border.
      The Constitution clearly gives Congress the power of the purse. "No money shall be drawn from the Treasury but in consequence of Appropriations made by law," according to Article I, section 9, clause 8. The president has no free-wheeling power to spend money unless Congress appropriates the money for the purpose at issue.
      This elementary separation-of-powers issue reached the Court in a case brought by the Sierra Club and a coalition of southern California communities. They sued Trump in federal district court in San Francisco, contending that the administration had no authority to redirect DOD funds to the border wall project.
      For legal standing, these plaintiffs claimed the border wall would harm the environment and interfere with their recreational interests. They argued that these claimed harms would satisfy the so-called "zone of interests" test often required to establish legal standing. But they also argued that a long line of precedents granted plaintiffs to challenge allegedly unauthorized governmental action without any need to satisfy that test.
      Those arguments satisfied Judge Haywood Gilliam, the Obama appointee designated to hear the Sierra Club case. He issued a permanent injunction prohibiting the transfer of funds on June 28; a few days later, a three-judge Ninth Circuit appellate panel rejected the government's request to stay Gilliam's injunction. The government headed straight to the Supreme Court, with its five-justice majority of Republican appointees, including the two named by Trump.
      The administration claimed authority to "reprogram" DOD funds to the border wall project under a section of the Defense Department appropriations act: specifically, section 8005 in the act. That section allows transfer of funds for "unforeseen" needs as long as the funds had not been "denied" by Congress. Solicitor General Noel Francisco argued implausibly in a written brief that the need for border wall funds was unforeseen and the funds for the wall had never been "denied" though vigorously debated in Congress and cut in half from the administration's request.
      Francisco went on to argue that the plaintiffs had no legal standing to enforce the limits on the president's discretion in reprogramming funds. But the administration had argued, in a separate case in federal district court in the District of Columbia, that the House of Representatives itself had no legal standing either. A Trump-appointed judge, Trevor McFadden, dismissed that suit in May on that ground.
      The Court's decision came in an unsigned, one-paragraph order issued late Friday afternoon granting the requested stay pending the government's appeal before the Ninth Circuit and later appeal to the Supreme Court itself. One of the "reasons" — no others were listed — was the government's "sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with section 8005." A weak reed, indeed, on an arguably inapplicable technicality.
      The four liberal justices voted to deny the stay. In an opinion, Justice Stephen G. Breyer said the administration had failed to show "irreparable harm," as ordinarily required to stay a lower court decision and short-circuit the appellate process. As a compromise, Breyer would have allowed the government to let contracts but not to begin actual construction.
      Trump issued a gloating tweet within the hour: "Wow! Big VICTORY on the wall!" From the opposite end of Pennsylvania Avenue, House Speaker Nancy Pelosi said the Court's ruling "undermines both the Constitution and the law." From all that appears, Gorsuch and Kavanaugh are working from a different version.
      So too, Trump himself, as seen in his explanation of presidential powers to a group of young conservatives last week [July 25]. "Then I have an Article 2," he told the young people wrongly, "where I can do whatever I want as president." The Supreme Court, sadly, missed a good opportunity to correct the president's misstatement, but apparently this Court will pretty much let this president do whatever he wants.

Sunday, July 21, 2019

In Final Months, Justice Stevens Had Regrets

      Supreme Court justice John Paul Stevens was fondly remembered after his death last week [July 16] as a judge's judge, a generous boss and mentor, and the very embodiment of courtly manners. The outpouring of tributes is an unpleasant reminder, however, of the Court's transformation in the final years of Stevens' long life from a safeguard for liberty and justice into an instrument of the Republican Party's legal and political agenda.
      Stevens aired his own regrets about that development in candid comments when NPR's Nina Totenberg asked him in May whether he thought the current Supreme Court had taken a radical turn to the right. "Yes," Stevens replied. "I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest."
      Stevens was President Gerald Ford's nominee for the Court based on the recommendation of Edward Levi, the former president of the University of Chicago who served as U.S. attorney general in Ford's accidental presidency. Ford had asked Levi to recommend a candidate who could win confirmation easily based on academic and legal credentials.
      Stevens' credentials were impeccable and, in contrast to most of the Republican nominees in the years since, completely apolitical. The Democratic-controlled Senate confirmed Stevens in a 98-0 vote, within weeks after Ford nominated him. Today, Stevens would have been vetted by the Federalist Society and his name never put forward.
      Stevens arrived at the Court after five years on the federal appeals court in Chicago, his record well regarded and his judicial demeanor and temperament unquestioned. He was a registered Republican and Midwestern conservative with not the slightest hint of an ideological agenda as the successor to the outspoken liberal justice, William O. Douglas.
      In his recently published memoir The Making of a Justice, Stevens stresses the importance as a judge to "learn on the job." And he did. In his first term on the Court, he joined two other centrist justices, Byron White and Potter Stewart, in casting the pivotal votes to allow the resumption of capital punishment four years after the Court had outlawed the death penalty as arbitrary and discriminatory. The ruling in companion cases prohibited mandatory death penalty laws but allowed capital sentencing schemes that gave juries sufficient guidance to guard against arbitrariness.
      Thirty years later, Stevens confessed that the legal experiment he helped launch had failed. Dissenting in an early method-of-execution case, Baze v. Rees (2008), Stevens voted to find the death penalty unconstitutional based on what he described as "my own experience." Stevens said he had concluded that the death penalty amounted to cruel and unusual punishment under the Eighth Amendment because it represented "the pointless and needless execution of life with only marginal contributions to any discernible social or public purpose."
      Stevens also changed his stance on another major issue during his tenure: affirmative action. He voted early in his tenure in Bakke v. Regents (1978) to bar a quota-like admissions system at the University of California-Davis medical school. A quarter-century later, however, Stevens cast a pivotal vote in the 5-4 decision in Grutter v. Bollinger (2003) to uphold a more narrowly tailored use of race in admissions at the University of Michigan law school.
      On and off the bench, Stevens was unfailingly polite, but he was sharply critical in any number of dissenting opinions. He famously complained in Bush v. Gore that the 5-4 decision to cut off the Florida recount prevented the country from ever being sure about who won the 2000 presidential election. A few years later, he dissented from Chief Justice John Roberts' decision in Parents Involved v. Seattle School District (2007) to limit school districts' ability to adopt pupil assignment policies to promote racial balance. In his dissent, he opined that none of the justices on the Court at the time of his appointment would have joined Roberts' opinion.
      Stevens retired from the Court in 2010 at age 90, one of nine justices to serve past that age; he marked his 99th birthday in April during the round of interviews for his memoir, nearly four years after he had become the longest lived justice ever. As noted in this space before, among several other long-serving justices Stevens stands out as having retired of his own accord when he sensed his stamina failing. Douglas was literally forced off the Court by his colleagues in 1975: so too with Stephen Field in 1897 and Oliver Wendell Holmes Jr. in 1931.
      Despite his age, Totenberg found Stevens mentally sharp and physically fit. But he was openly discouraged about the Court's current course. The Court, he remarked, "seems to be more ideological than it has been since the 1930s." The mantra that the justices are judges, not politicians, is "harder and harder to believe," he lamented.
      With the term's most important decisions of the term yet to come, Stevens observed somewhat hopefully that Roberts "occasionally takes a different position from the other Republicans." Asked if there was one takeaway from his book, his third,  Stevens obliged. "The world is changing much faster than I anticipated," he answered. For better or worse, Totenberg asked. "For the worse, I think."

Sunday, July 14, 2019

Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.

Saturday, July 6, 2019

On Census, Trump Eyes Executive Order Amidst Chaos

       President Trump threw a tantrum on Twitter after the Supreme Court's decision [June 27] that blocked the administration for now from including a citizenship question as part of the 2020 decennial census. Chief Justice John G. Roberts Jr., hardly a critic of executive branch power, rejected in Department of Commerce v. New York what he called the "contrived" explanation that Commerce Secretary Wilbur Ross gave for including the question in the census form distributed to all U.S. households.
      The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
      Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
      Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
      Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
      The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
      In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
      Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
      The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
      In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
      The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.

Sunday, June 30, 2019

Republican Justices Boost GOP on Gerrymandering

      The Supreme Court's stunning decision to bar federal courts from hearing suits that challenge political gerrymandering whether practiced by Republicans or by Democrats has the misleading appearance of political evenhandedness. In a legal coup executed by five Republican-appointed justices, Chief Justice John G. Roberts Jr. slammed the federal courthouse door shut last week [June 27] to voters of any political stripe who object to having their votes count for nothing through the political skullduggery of partisan redistricting.
      Roberts took pains in announcing the Court's decision in Rucho v. Common Cause to make clear that the 5-4 majority was turning aside not only Democrats' challenge to a Republican gerrymander in North Carolina but also a challenge by Republicans to a Democratic gerrymander in blue state Maryland.
      History refutes any implication of political evenhandedness on the part of the Republican justices. Through three-and-a-half decades of political gerrymandering cases, all of the cases to reach the Court except Maryland's Lamone v. Benisek have been challenges to Republican-drawn district maps. In each of those cases, Republican mapmakers were credibly shown to have drawn congressional or legislative districts primarily for the purpose of helping elect Republicans at Democratic voters' expense: Indiana in Davis v. Bandemer (1985); Pennsylvania in Vieth v. Jubiler (2004); Texas in League of United Latin American Citizens v. Perry (2006); and Wisconsin in Gill v. Whitford (2018).
      Current political conditions reinforce the point that Republicans will benefit from federal courts being ordered to stay out of political gerrymandering cases. At present, Republicans control legislatures and gubernatorial offices in 20 states, while Democrats lag behind with unified control in only 12 states. More to the point, Republicans have been more aggressive in drawing district lines for political advantage in red states than Democrats have been in blue states.
      Indeed, Democrats and liberal advocacy groups have provided much of the political muscle behind the efforts that Roberts commends in his decision to create bipartisan or nonpartisan commissions to draw district lines. Thus, as political journalist David Freedlander remarked on Twitter, the likely effect of the ruling is for Republicans in red states to respond by "gerrymandering Democrats to a fare-thee-well"  and for Democrats in blue states to respond "by setting up a nonpartisan redistricting commission."
      Even in the two instant cases, North Carolina Republicans were guilty of a more serious offense than the Maryland Democrats. Partisan motivations were not disputed in either case. Maryland's Democratic governor Martin O'Malley acknowledged the new congressional map was designed to eliminate one of the state's two Republican House members. In North Carolina, state Rep. David Lewis, one of the chief legislative mapmakers, stated that his map was designed to preserve the Republicans' existing 10-3 edge in U.S. House seats.
      Lewis made no secret of his motivation. "I think electing Republicans is better than electing Democrats," he said. He offered the 10-3 map, he explained, only because he found it impossible to draw a map that would reliably elect 11 Republicans in a state closely divided between Republicans and Democrats.
      Roberts' answer to such political chicanery is to throw up the Court's hands and leave voter lambs to the mercies of political wolves. Reviewing the cases, Roberts wrongly concludes that history is destiny: the Court's failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.
      Writing for the Court's four Democratic appointees, Justice Elena Kagan followed Roberts' hand-down with an extraordinary fifteen-minute dissent, her voice cracking at times with emotion and as she said at the end "deep" sadness. She opened with a dramatic flair. "For the first time ever," she said, quoting her opening passage, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." She answered Roberts by noting that lower federal courts have managed to rule on gerrymandering cases even if the Court's conservatives think they cannot.
      To be sure, it is not the first time that the Court has left a constitutional violation unremedied in the area of reapportionment and redistricting. To its lasting discredit, the Court in 1946 rejected a federal court suit by voters in Illinois seeking to force the state legislature to reapportion congressional districts as required by federal law to have equal populations. Justice Felix Frankfurter provided the pivotal vote in the 4-3 decision in Colegrove v. Green by urging his colleagues to stay out of what he called a "political thicket."
      Frankfurter is remembered today, unfavorably for the most part, as hard to get along with and indifferent to violations of constitutional rights. He remained on the Court long enough to see Colegrove overturned by a 6-2 decision in the seminal reapportionment case, Baker v. Carr (1962).  Chief Justice Earl Warren is today far better remembered and more honored than Frankfurter for leading the Court into remaking the political landscape by entrenching a seemingly obvious democratic principle: one person, one vote.
      After retiring, Warren claimed the Baker v. Carr line of decisions as the most important accomplishment of his 17 years as chief justice. Roberts, at age 65 and perhaps less than halfway through what could be a 30-year tenure, already ponders his legacy. This decision will be part of a legacy that mocks Roberts' insistence that the Court has no Republican justices nor Democratic justices and that, equally, mocks the promise carved in marble above the entrance to the Supreme Court building: "Equal Justice Under Law."