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 14^th 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 14^th amendment and quite possibly the free speech protections of the 1^st 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.

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LeRoy Goldman

October 16, 2018