WILL ROBERTS RULE?
By:
LeRoy Goldman
October 16, 2018
The nomination and confirmation of Brett Kavanaugh as an Associate
Justice of the Supreme Court has led many Americans to rejoice
because the Court now has a solid conservative majority. Perhaps so,
but my guess is that cork-popping celebrations are either premature
or wrong. More importantly, if they are premature or wrong, how might
the Court change course? It's a consequential and deliciously
complicated question.
I'm not suggesting that Brett Kavanaugh will turn out to be another
David Souter turncoat now that he is on the High Court. There is
substantial, solid evidence that he will become a reliable
conservative jurist on the Supreme Court just as he has been during
his more than a decade of distinguished service on the District of
Columbia Court of Appeals.
No, the issue here is not Justice Kavanaugh, it's Chief Justice John
Roberts, and the direction of the Supreme Court going forward. The
task facing the Chief Justice is daunting, if not impossible. This
is so because America is coming apart at the seams. The threat we
face is no less than the unraveling of our unique form of
constitutional governance. The evidence of our peril is everywhere
evident.
Wherever you look, America has become a bitterly divided nation that
no longer functions. Our dissolution has grown immensely worse over
the past quarter century. Most of us can see the problem most easily
by looking at Washington. There it is obvious that we have a
president who represents only half the nation, the Red and White
half, and that's OK with him. And before him we had a president who
represented the other half of the nation, the Blue and Black half,
and that was OK with him.
In an almost evenly divided Congress it's obvious that, instead of
passing bipartisan legislation that grapples with the nation's
problems, Congress is addicted to a war of annihilation. The net
effect is stalemate, a zero sum game that can only be won if the
other side loses.
But Washington's stalemate is not the root problem. It is simply a
manifestation of the root problem—us. A quarter century of
Red/Blue venom has now poisoned the nation. We are in the midst of a
new Civil War that neither side can win, but both will lose.
Don't be naive enough to think that the 2018 or 2020 elections will
some how restore good governance. The probability of that is zero.
Although it's a slim reed, there's a chance that the Supreme Court
might illuminate the way forward. For that to be the case, it will
be necessary for John Roberts to demonstrate a level of competence,
savvy, and courage that we've not yet seen from him.
Don't underestimate the magnitude of the task ahead for Roberts and
the Court. It too is bitterly divided. And with the departure of
Justice Kennedy and the arrival of Justice Kavanaugh there is a real
chance the High Court will become just as impotent as the president
and the Congress.
At his confirmation hearing before the Senate Judiciary Committee in
2005 John Roberts famously said, “Judges are like umpires. Umpires
don't make the rules; they apply them. The role of an umpire and a
judge is critical. They make sure everybody plays by the rules. But
it is a limited role. Nobody ever went to a ballgame to see the
umpire.”
And before that same committee this year and at his ceremonial
swearing in at the White House Brett Kavanaugh said, “A good judge
must be an umpire—a neutral impartial arbiter who favors no
litigant or policy” At the White House he said, “The Supreme
Court is an institution of law. It is not a partisan or political
institution. The justices do not sit on opposite sides of an aisle.
We do not caucus in separate rooms. The Supreme Court is a team of
nine, and I will always be a team player on a team of nine.”
Maybe Roberts and Kavanaugh believed what they said, Maybe not. But
the hard fact of the matter is that the reality of the Court's
behavior flies in the face of those flowery words.
Writing in The Atlantic about the growing partisan divide on the
Supreme Court in August of 2014 Garrett Epps stated, “In fact it
seemed that American now has red and blue justices on its highest
court.” Further he wrote, “On the Roberts court, for the first
time, the party identity of the justices seems to be the single most
important determinant of their votes.”
Writing in the Washington Post earlier this month Ruth Marcus
correctly ridiculed part of Judge Kavanaugh's testimony before the
Senate Judiciary Committee as “laughably naive” when he told the
Committee, “The Supreme Court must never, never be viewed as a
partisan institution.”
Not so fast Kemosabe. The Roberts Court has been on a trajectory of
partisan deadlock for over a decade. That partisanship comes not
from just the four Conservative justices. It also comes in equal
measure from the four Liberal justices. To miss that point, misses
the point.
In fact much of the frenzy over the necessity for a swing vote on the
Court, like O'Connor or Kennedy, stems from the fact that all too
frequently the other eight justices are predictable ideologues. We
spend way too much time focused on the Court's one Swing vote, and
not nearly enough time worrying about the clear and present danger
posed by the other eight intransigent justices.
Now with the retirement of the occasional swing vote of Justice
Kennedy and the elevation of the almost certainly reliably
conservative vote of Justice Kavanaugh the Roberts Court stands at a
pivot point in history.
Either it will become an indistinguishable part of polarized
Washington, or it can be instrumental in restoring the sort of
constitutional governance that the Founding Fathers expected from all
three branches of the Federal Government. The choice it makes will
be determined by John Roberts. The easy choice, more of the same, is
the wrong choice. The hard choice, risking inevitable tribal outrage
and condemnation from the public, is the right choice.
How might the Chief Justice begin to make the right choice? It would
necessarily need to be dramatic and obvious, not nuanced and opaque.
Start with the cluster of cases now before the Court in respect of
gerrymandering and end that opening move with a decision or set of
decisions that strike down gerrymandering—political gerrymandering
AND racial gerrymandering.
Such a decision or set of decisions would be nothing less than one of
the landmark Supreme Court rulings, right up there with Marbury v.
Madison, Youngstown Sheet & Tube Co. v. Sawyer, Brown v. Board of
Education, and Roe v. Wade. And such a ruling would also profoundly
alter the make-up of Congress for the better because the declaration
that both political and racial gerrymandering are unconstitutional
would give Congress the bipartisan enema it so desperately needs.
The Supreme Court has been schizophrenic with respect to its
consideration of cases respecting political and racial
gerrymandering. Regarding political gerrymandering, the Court has
been loath to rule. In contradistinction it has willingly and
repeatedly weighed into cases involving racial gerrymandering. That
differential behavior by the Supreme Court has contributed enormously
to the paralysis that has corrupted the House of Representatives.
Political gerrymandering is as American as apple pie. The term dates
back to an article in the Boston Gazette on March 26, 1812. At that
time Elbridge Gerry was Governor of Massachusetts. He had signed
into law a bill that redrew electoral district lines in the state
that gave partisan advantage to his party. Some of those districts
had bizarre shapes in order to achieve their partisan purpose. The
most notable was a state senate district covering Essex County. It
resembled a salamander. Thus the term, Gerrymander, was born.
The practice of drawing electoral districts in a way to advantage one
party over another has continued ever since. After all, elections
have consequences and no one should be surprised that the victors
would put their thumb on the scale in order to reap the benefits of
what voters had decided at the ballot box.
Thus, it's not surprising that the Courts traditionally chose to not
intervene in efforts to dismantle the process. But all that changed
exactly 150 years later when on March 26,1962 the Supreme Court
handed down its decision in Baker v. Carr.
In the Baker decision a bitterly divided Court weighed into the
“political thicket” when Justice Brennan, writing for the
majority, decided that the redistricting of state electoral districts
in Tennessee was a justiciable issue. Although the State
constitution required redistricting every ten years, Tennessee had
not complied with that requirement for over a half century.
Accordingly, some districts had ten times as many residents as
others. Baker argued such size variations denied him equal
protection of the law under the Constitution's 14th
amendment. Brennan, writing for a 6-2 majority, agreed, and the
principle of one man, one vote was established, and reinforced two
years later in the Court's ruling in Reynolds v. Sims.
In a scathing dissent justices Frankfurter and Harlan argued that the
Court had turned its back on history and violated the Constitution's
doctrine of Separation of Powers.
Chief Justice Earl Warren, who joined Brennan in the Baker decision,
called that decision the most consequential decision during his
tenure on the Court. That's a remarkable a statement in light of
Warren's landmark unanimous opinion in Brown v. Board of Education in
1954 that overturned the longstanding doctrine of Separate but Equal
in public education.
Although the Court's ruling in Baker was monumental and
controversial, the implementation of it was straight forward.
Election districts had to be almost equal in size. That's easy to
achieve. If you look at the nation's 435 congressional districts
today, virtually all of them have about the same number of residents,
approximately 711,000.
But having equal numbers of residents doesn't preclude the drawing of
district lines that favor, or grossly favor, one party over the
other. And there's the rub.
Here we are more than a half century since Baker and the politicians
in both parties have run amok gerrymandering. Forget putting a thumb
on the scale, now our elected representatives have jumped on the
scale and crushed it. Aided by software that enables them to tailor
district lines such that only one party can win, they have made a
mockery of representative government.
North Carolina provides a graphic example of this unconstitutional
abuse of power. North Carolina is a swing state, evenly balanced
between Republicans and Democrats. In 2016 Donald Trump carried it
narrowly, by 3%, and Roy Cooper ousted Republican Governor, Pat
McCrory by less than 1%. Yet the incumbent party won in every
congressional district, and their margins of victory ranged from an
insurmountable 56% to an eye-popping 69%. That's political
gerrymandering run wild.
Although numerous cases have come before the Supreme Court
challenging the constitutionality of political gerrymandering, the
Court has yet to find a way to successfully implement a scheme that
would stuff the gerrymandering genie back into the bottle. Last year
the High Court considered such cases from North Carolina, Wisconsin,
and Maryland. It punted on all three in part because it could not
determine how to figure out how to impose a workable remedy, and
because the ideological chasm on the Court mitigates against a remedy
that is fair and balanced.
Racial gerrymandering is a completely different kettle of fish. It's
much more recent, dating to the passage of the Voting Rights Act
(VRA) in 1965 and amendments thereto in subsequent years. The VRA is
landmark legislation and it's enactment in 1965 was long overdue. It
has been instrumental in curbing longstanding voting discrimination
against minorities, especially in the South.
The VRA has also mandated the creation of Majority-Minority
congressional districts. These are districts that have a majority of
either Black or Hispanic residents and are drawn to “guarantee”
the election of a minority individual from such districts. Over the
past several decades there has been an explosion of Majority-Minority
congressional districts. There are now more than 125 such districts,
including two in North Carolina. Not surprisingly, virtually all of
them are represented by Democrats. The logic supporting such a law
was that racial discrimination would otherwise preclude the election
of minorities to Congress.
Although the existence of such racial discrimination did serve as a
barrier to the election of minorities to Congress at the time of the
enactment of the VRA, the passage of time has without doubt
significantly lessened that odious practice.
And that brings us to the unanticipated nexus between political and
racial gerrymandering. The creation of an ever increasing number of
Majority-Minority districts containing overwhelming numbers of
minorities created an irresistible political opportunity for
Republicans in many states. Those Black and Hispanic dominated
districts enabled the GOP to become competitive and win many other
districts that came to be solidly Republican as more and more
minorities were packed into the districts mandated by the VRA. The
net effect of all of this maneuvering has been advantage GOP.
The Supreme Court has shown no reluctance to rule on cases respecting
racial gerrymandering. Unsurprisingly, the Court has consistently
ruled in favor of Majority-Minority districts based upon the
provisions of the VRA. It almost reversed itself in three related
North Carolina cases, the so-called Shaw-Cromartie cases in the late
90s. But in the third and final such case, then Justice Sandra Day
O'Connor, the Swing-Vote, switched her vote and North Carolina's
Majority-Minority districts survived.
This bipartisan abuse of power has now reached the point that it has
paralyzed the House of Representative, and, more importantly, flies
in the fact of the Constitution and the clear intent of its framers.
They, without doubt, intended to create a governing structure that
put control in the hands of the governed, not those in Washington.
Concepts like the Rule of Law, Separation of Powers, Checks and
Balances, and Equal Protection are at the heart of the Federalist
Papers, the Constitution, and the Bill of Rights. All of that is
threatened and being undercut by the symbiotic effect of political
and racial gerrymandering that enables members of Congress and
members of state legislatures to guarantee their own reelection in
perpetuity.
This nation no longer needs to rely on the forced creation of
Majority-Minority congressional districts. That they were once
necessary does not mean they are necessary in perpetuity. The
illogic of their current necessity can be easily grasped by applying
that logic to this nation's presidential elections in 2008 and 2012.
The logic would have required that Barack Obama be declared the
winner of the presidential election if he carried the three electoral
votes of the District of Columbia with its overwhelmingly Black
population. The logic would have held that candidate Obama could not
have won any of the several states because he would have lost due to
racial discrimination in all those states because they lacked a
majority of minorities.
Of course, it didn't turn out that way. In 2008 Barack Obama carried
the District of Columbia and 28 states while defeating a white
opponent decisively in the Electoral College and by 10 million votes
nationwide. In 2012 he was reelected by carrying the District of
Columbia and 26 states while defeating a white opponent decisively in
the Electoral College and winning the popular vote by over 5 million
nationwide.
Majority-Minority congressional districts are no longer necessary.
More importantly they are unconstitutional in that they violate the
Equal Protection clause of the 14th amendment and quite
possibly the free speech protections of the 1st amendment.
The remedy is obvious. The Supreme Court should rule that both the
current forms of political and racial gerrymandering are
unconstitutional. That's a daunting order, and most would quickly
suggest that it's impossible to achieve. Perhaps, but the
alternative is Armageddon.
I believe the only way to bring and end to both of these
unconstitutional practices is to take them on together. That is
counter intuitive, but stay with me now. Start by remembering that
the High Court is ideologically polarized, the bleatings of its
members to the contrary notwithstanding. That means the
Conservatives on the Court are open to doing something to end racial
gerrymandering, and the Liberals on the Court are open to doing
something to end political gerrymandering.
The only way to get a sustainable majority to end both forms of
gerrymandering is for Roberts to persuade all, or most all of, his
colleagues on the Court that one must be the handmaiden of the other
That is Chief Justice Roberts challenge.
Here's how it can be accomplished. Just as the Court ruled in 1962
that districts had to be essentially equal in population, now it
should rule that districts need to essentially mirror the breakdown
statewide among Democrats, Republicans, and Unaffiliated/Independent
voters. That will do it. Sure it will result in oddly shaped
districts that will encompass center cities, suburbs, exurbs, and
rural areas all over the nation. But so what. We've lived with
salamander shaped districts now for more than 200 years.
That is Roberts' pathway to bridging the chasm that divides both the
Court and the nation. That is the move, if skillfully and
successfully accomplished, that will make him one of the nation's
greatest Chief Justices.
Earl Warren in his first year as Chief Justice unified a bitterly
divided Court in 1954 when in the Brown decision the Court
unanimously found the doctrine of Separate But Equal in public
education unconstitutional. Now the urgently necessary giant leap
forward is in John Roberts hands. Call it ROBERTS RULE.
I welcome comments: Please contact me at:
LeRoy Goldman
October 16, 2018
