CHIEF JUSTICE ROBERTS, “NO MÁS”

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