CHIEF JUSTICE ROBERTS, “NO MÁS”
By:
LeRoy Goldman
July 1, 2019
Who would have ever thunk that Chief Justice Roberts would forever
sully his reputation and the reputation of the Supreme Court by
channeling Roberto Duran? In his second fight with Sugar Ray Leonard
for the Welterweight Championship in 1980, Duran refused to answer
the bell for the ninth round by turning to the referee and saying,
“No más”. And that's precisely what Chief Justice Roberts did in
his majority opinion last week respecting the two political
gerrymandering cases upon which the Court ruled, Rucho v. Common
Cause and Lamone v. Benisek. Duran never escaped his self imposed,
ignominious surrender. Neither will Roberts.
In both cases the plaintiffs allege that gerrymandering violated the
First Amendment of the Constitution, the Equal Protection Clause of
the Fourteenth Amendment, the Elections Clause, and Paragraph 2 of
Article I of the Constitution.
This 5-4 decision is breathtakingly bold and breathtakingly flawed.
We can all hope, and I expect, that it will not stand the test of
time. It's bold and flawed in that it unequivocally rules that the
claim of unconstitutional political gerrymandering is one that is not
justiciable, not within the legitimate purview of the Federal Courts
to adjudicate. That draconian conclusion flies in the face of
numerous Supreme Court rulings on redressing impermissible political
gerrymandering dating back to the landmark Court ruling in Baker v.
Carr in 1962.
Baker v. Carr was the landmark case in which the Court established
the principle that redistricting was in fact a justiciable issue thus
enabling the Federal courts to hear and decide such cases. It was in
Baker that the Court established the principle of One Man, One Vote.
The majority opinion was written by Justice Brennan, and the vote was
6-2, with Chief Justice Earl Warren in the majority. Two years later
the decision was expanded and reinforced by the Court's ruling in
Reynolds v. Sims. After he left the Court Earl Warren called the
decisions in Baker v. Carr and Reynolds v. Sims the most important
during his 16 year tenure on the Court, and that's no small potatoes
in the face of Warren's 9-0 opinion in the 1954 Brown v. Board of
Education case that struck down the 58 year old Court doctrine of
Separate But Equal in public education, and sounded the death knell
for segregation.
And there's more. The Court's ruling here, whether intended or not,
strikes at and narrows the scope of the Court's most important
decision contained in Marbury v. Madison in 1803 in which Chief
Justice John Marshall brilliantly established the Supreme Court as
the preeminent arbiter and interpreter of the United States
Constitution. In so doing Marshall established the enduring
principle of judicial review, which he underscored in his opinion by
stating, “that a law repugnant to the constitution is void, and the
courts, as well as other departments, are bound by that instrument”.
Roberts' majority opinion could have been more easily understood,
though not accepted, had it been a ruling on only Rucho v. Common
Cause, the North Carolina case. That's because the gerrymandering in
the Tar Heel state is one in which the Republicans have gone way too
far. Prior to their taking control of the Governors Mansion and both
chambers of the state legislature in 2010 the North Carolina
congressional delegation was divided 7-6 in favor of the Democrats.
After the GOP sweep and the 2010 census the resulting balance favored
the GOP 10-3.
Thus a ruling by the five conservative justices only on Rucho could
have been understood as a blatant act of partisan favoritism to the
GOP by the Court’s Conservative majority. However, the other case,
Lamone v. Benisek, is an example of political gerrymandering run amok
in precisely the opposite direction. That case out of Maryland is
one in which the Democrats redrew the congressional district lines in
order purge Republican members of Congress.
What we've got here is bipartisan egregiousness that the Court now
condones by fleeing the field of battle. In so doing it offers up
canards by stating that the problem can be addressed by Congress or
State Courts.
Congress has proven that not only will it not beneficially address
this problem, It has also proven that it is the prime mover in
worsening the problem of political gerrymandering. To believe, as
Chief Justice Roberts opines, that an epiphany will cause it to
reverse course is delusional.
While it may be possible for state courts to ameliorate the
deleterious effects of political gerrymandering, the fact of the
matter is that by definition such a remedy relies upon and awaits
actions in fifty states. It's reasonable to assume many of those
actions will be in conflict with one another. Stop and think for a
moment about how the Federal court system operates. Most cases taken
up by the Supreme Court are ones that are intended to resolve
conflicting opinions by the Federal Appeals Courts so that there is
uniformity among the several states and in the nation. Resolving the
worsening problem of political gerrymandering is a matter that
requires a national set of rules that will fairly and uniformly
govern the election of members of Congress from all states.
Roberts' notion of waiting for 50 different flowers to bloom or not
in the various state capitols amounts to inappropriate and offensive
buck passing, and he knows it.
I understand that this ringing condemnation of Chief Justice Roberts'
ruling pulls no punches, and offers no comfort or excuse for its
failure stand and deliver. But one need not rely on my assessment of
its fatal flaws in order to reach such a conclusion. Here are the
central tenets of the dissent in Rucho and Lamone from Justice Kagan.
In the aggregate they demolish Roberts' holding.
Justice Kagan states in part:
“The partisan gerrymanders in these cases deprived citizens of the
most fundamental of their constitutional rights. In so doing the
partisan gerrymanders here debased and dishonored our democracy,
turning upside-down the core American idea that all governmental
power derives from the people. If left unchecked, gerrymanders like
the ones here may irreparably damage our system of government. And
checking them is not beyond the power of the courts. In giving such
gerrymanders a pass from judicial review, the majority goes
tragically wrong.
The 'power' James Madison wrote, 'is in the people over the
Government, and not in the Government over the people.' Free and
fair and periodic elections are the key to that vision.'
Partisan gerrymandering of the kind before us not only subverts
democracy (as if that weren't bad enough). It violates individual
constitutional rights as well. That practice implicates the
Fourteenth Amendment's Equal Protection Clause. And partisan
gerrymandering implicates the First Amendment too.
So the only way to understand the Majority's opinion is as follows:
In the face of grievous harm to democratic governance...the majority
declines to provide any remedy. For the first time in this Nation's
history the majority declares that it can do nothing about an
acknowledged constitutional violation because it has searched high
and low and cannot find a workable legal standard to apply.
First and foremost, the majority says, it cannot find a neutral
baseline from which to measure injury. And second the majority
argues that even after establishing a baseline, a court would have no
way to answer 'the determinative question: How much is too much?'
But in throwing up its hands, the majority misses something under its
nose: What it says can't be done has been done. Over the past
several years, federal courts across the country—including, but not
exclusively, in the decisions below—have largely converged on a
standard for adjudicating partisan gerrymandering claims. And that
standard does what the majority says is impossible. It takes as its
baseline a State's own criteria of fairness, apart from partisan
gain. And by requiring plaintiffs to make difficult showings
relating to purpose and effects, the standard invalidates the most
extreme, but only the most extreme, partisan gerrymanders.
This Court should have cheered, not overturned, that restoration of
the people's power to vote.
The politicians who benefit from partisan gerrymandering are unlikely
to change partisan gerrymandering. And because those politicians
maintain themselves in office through partisan gerrymandering, the
chances for legislative reform are slight.
The majority's most perplexing 'solution' is to look to state courts.
But what do those courts know that this Court does not? If they can
develop and apply neutral and manageable standards to identify
unconstitutional gerrymanders, why couldn't we?
Of all the times to abandon the Court's duty to declare the law, this
was not the one. The practices challenged in these cases imperil our
system of government. Part of the Court's role in that system is to
defend its foundations. None is more important than free and fair
elections.”
Justice Kagan's dissent makes clear thankfully that Roberts' ruling
is fatally flawed. That It will not stand is clear. How long it
will take for it to fall is not.
Regardless of that there is more to be said on political
gerrymandering's twin, racial gerrymandering. Racial gerrymandering
and its constitutionality was not part of the Court's decision last
week in the Rucho and Lamone cases. But make no mistake about the
relevance of racial gerrymandering to both the problems
gerrymandering pose to free and fair elections and the corrosive way
it interacts with political gerrymandering.
The hard fact of the matter is that political gerrymandering and
racial gerrymandering are two sides of the same coin. Stuffing the
gerrymandering genie back into the bottle necessarily requires
dealing with both of its forms—political and racial.
The genesis of racial gerrymandering, government ordered creation of
so called Majority-Minority congressional districts, grew out of the
1982 amendments to the 1965 Voting Rights Act. Those amendments say
that if racially polarized voting exists and if a Majority-Minority
district can be drawn, then it MUST be drawn. A Majority-Minority
district is one that must have a large majority of minorities within
its borders. These minorities are almost always Blacks or Hispanics.
And it is the case that overwhelming numbers of Blacks and a large
majority of Hispanics vote Democratic.
Thus the ever increasing number of Majority-Minority congressional
districts are represented by Black or Hispanic Democrats. Today
there are well over 100 such House districts, and that has been a
treasure trove for minorities and for Democrats.
But not all of the news has been beneficial to the Democrats. Thanks
to the Court's decisions in Baker v. Carr in 1962 and Reynolds v.
Sims in 1964, wherein the principle of One Man, One Vote was
established, it's necessary for all congressional districts to have
essentially the same number of persons. And there's the rub.
If Blacks and Hispanics are required to be packed in very large
numbers into Majority-Minority districts, the result is that there
are far fewer of them for the rest of the state's congressional
districts. That means all of the rest of the state's districts have
a larger proportion of white voters, and that has proven to be a
bonanza for the GOP. That excess of white voters is what enables the
Republicans to gerrymander to their advantage. And that is the
essential nexus that explains how the Democrats are the principal
beneficiaries of racial gerrymandering and the Republicans are the
principal beneficiaries of political gerrymandering. On balance the
nexus between these two odious forms of gerrymandering has resulted
in the creation of more Republican seats than Democratic seats.
Thus the only way to get at the deleterious effects of gerrymandering
is to assault it in both of its corrosive forms. Rucho and Lamone
attempted and failed to convince the Court that political
gerrymandering was unconstitutional. Righting that wrong will have
to await another day in Court. But how do we reform racial
gerrymandering?
The answer is by recognizing that, like its kissing cousin, political
gerrymandering, it too is unconstitutional! The Achilles heel of
both forms of gerrymandering is that they both unconstitutionally cut
across the bow of the First and Fourteenth Amendments to the
Constitution.
In fact the Court came within a single vote of finding racial
gerrymandering unconstitutional almost twenty years ago. The matter
was before the High Court In a series of three cases decided between
1993 and 2001. Those cases were brought by Robinson Everett then a
Duke University Law Professor and formerly the Chief Judge of Court
of Military Appeals. Everett was a liberal Democrat with close
connections to the African-American community in Durham, North
Carolina. Everett deeply opposed racial discrimination against
blacks, but he just as deeply opposed race-conscious policies that
were designed to benefit one race over another. He believed that
North Carolina's two Majority-Minority congressional districts were
unconstitutional racial gerrymanders.
Judge Everett won in the first two cases, but lost the third and
decisive case 5-4 when then Justice Sandra Day O'Connor switched her
vote. It was a particularly bitter pill for Everett to swallow given
the fact that in one of the previous cases Justice O'Connor had
stated, “A reapportionment plan that includes in one district
individuals who belong to the same race, but who are otherwise widely
separated by geographic and political boundaries, and who may have
little in common with one another but the color of their skin, bears
an uncomfortable resemblance to political apartheid.”
That outcome was two decades ago. Since then times have changed, and
changed for the better. The American people have twice elected an
African-American President of the United States. And he did not need
a contrived district made up of overwhelmingly minority voters in
order to win and win handily.
Moreover the notion that minority members of Congress like John
Lewis, Elijah Cummings, James Clyburn, Marcia Fudge, Henry Cuellar,
Jose Serrano, or Linda Sanchez can only win if they are placed in a
congressional district with an overwhelming number of Blacks or
Hispanics is patently absurd.
The composition of the Supreme Court is different today than it was
twenty years ago. Another case challenging the constitutionality of
the Majority-Minority districts may very well succeed. Were that to
happen think about its consequences.
Since all Congressional districts must have essentially the same
number of people, a Court ruling that found Majority-Minority
districts unconstitutional would necessarily require that most of the
minorities in those many districts would have to be placed in other
districts. To a large extent those districts will be ones that the
GOP has gerrymandered to its advantage. And then the overage of
individuals in those districts will of necessity have to be moved to
districts lacking sufficient numbers, the diminished former
Majority-Minority districts. The net result is that all such
affected districts become less gerrymandered and both the Republicans
and the Democrats pay the price of the long overdue reform. How nice
is that!
In 2007 in Parents Involved in Community Schools v. Seattle School
District No. 1 Justice Roberts stated, “The way to stop
discrimination on the basis of race is to stop discriminating on the
basis of race.”
Chief Justice Roberts has unnecessarily dug himself and the Court
into a deep hole in Rucho and Lamone. He needs to stop shoveling,
take his own advice from 2007, and use it to end racial gerrymandering.
Then we will see the entire row of gerrymandering dominoes begin to
fall.
LeRoy Goldman
July 1, 2019
