June 27, 2019

The supreme court is supposed to be a check on the political process. Is it still?
In two decisions announced on Thursday, the court’s conservative majority dodged its duty to protect the political process ‘Gerrymandering undermines the democratic process: No longer do voters choose their elected officials; elected officials now choose their voters.’ Photograph: J Scott Applewhite/APThe most important role of the federal judiciary, including the supreme court, is to check the political process by enforcing the constitution.At times, the court has performed this role admirably, as it did when it brought an end to the laws that created apartheid and required legal segregation of the races. At other times, the court has failed miserably – for example in continually upholding slavery before the civil war, and in allowing the government to intern 110,000 Japanese-Americans during the second world war.As the supreme court finished its term on Thursday, it once again had a mixed record of being willing to stand up to the political process.Most importantly, the court said federal courts cannot hear challenges to partisan gerrymandering. Political gerrymandering is when the political party that controls a legislature draws election districts to maximize safe seats for that party. For example, in one of the cases before the court, the Republican-controlled North Carolina legislature drew congressional districts with the explicit goal of ensuring that Republicans won 10 of 13 seats in the House of Representatives.North Carolina is basically a purple state, having gone for Obama in 2008, Romney in 2012, and Trump in 2016, always by very close margins. In 2016, Democrats and Republicans received almost exactly the same number of votes across the state for congressional seats, but the gerrymandering succeeded and Republicans took 10 of 13 seats, as planned.A federal court ruled that this kind of gerrymandering violates the first amendment by discriminating against people because of their political affiliation. It is unconstitutional, the court argued, to deny equal protection by effectively diluting people’s votes. It undermines the democratic process: no longer do voters choose their elected officials; elected officials now choose their voters.In its decision, the supreme court’s majority acknowledged this, calling partisan gerrymandering “incompatible with democratic principles”.> The court effectively put the fox in charge of the hen houseThe majority opinion dodged responsibility, however, by arguing that challenges to partisan gerrymandering are “political questions” that cannot be heard by the federal courts. The decision was 5–4, split along ideological lines, with the majority opinion written by Chief Justice John Roberts.The court said there aren’t any clear standards for when gerrymandering violates the constitution. But leaving this problem to be solved in the political process makes no sense: legislators who benefit from partisan gerrymandering are obviously not going to change the process. The court effectively put the fox in charge of the hen house.The majority decision is also anti-historical: the court can – and does – create legal standards, as it has in so many other areas, for when gerrymandering goes too far and violates the constitution.The court did exactly this in the 1960s, when it held that malapportionment of state legislatures violated the constitution. Prior to that, many state legislatures were badly malapportioned – there might be one district with 50,000 people and another with 250,000. Those in the latter district were obviously disadvantaged by the dilution of their political power.The court declared this unconstitutional and fashioned as a remedy the principle “one person – one vote,” meaning that legislative districts must be about the same size in population. Chief Justice Earl Warren later remarked that of all the decisions during his tenure on the court, he was most proud of the cases about malapportionment because the political process would not work to correct the problem; legislators who benefited from the practice were not about to change it.The court should have dealt with partisan gerrymandering the same way. It chose not to. In her dissent, Justice Elena Kagan powerfully explained what was wrong with the majority’s decision:> For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. 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.In the other major ruling of the day, the court, at least for now, stood up to the Trump administration and said that it must give a legitimate reason for asking on the 2020 census form whether a person is a citizen.The constitution requires a regular census every decade to ensure an accurate “enumeration” of the people. Being as accurate as possible in the count is crucial because seats in the House of Representatives are allocated based on the census and many federal programs apportion money based on it as well.The commerce department, which administers the census, added a question about whether a person is a citizen for the 2020 census. A question on citizenship was included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000. But the census form sent to all households has not included it in almost 70 years.Contrary to the claims of Republicans, it is clear that asking whether a person is a citizen will make the census less accurate, not more: undocumented immigrants and even documented citizens would be much less likely to participate in the census.In earlier decisions, federal district courts ruled against the Trump administration. They said that decisions of administrative agencies like the census bureau must have a reasonable basis, and there is no reasonable justification for including the question on citizenship.The Trump administration initially gave no reason for the proposed change - then claimed it was to aid in the enforcement of the federal Voting Rights Act of 1965. But there is no evidence that enforcement of that Act for the past 54 years has been hindered in any way by the absence of this question on the census. Indeed, there is no evidence from the justice department that asking this question on the census would do anything to help enforce voting rights.As Justice Breyer – joined by the court’s other three liberal justices – argued, the supreme court should have affirmed the lower court’s ruling and struck down the question about citizenship as arbitrary and capricious and thus in violation of federal law. But the five conservative justices refused, and instead sent the case back to the lower courts to give the Trump administration another chance to justify its case.With a president who pushes constitutional boundaries like none other in American history, it is crucial the supreme court perform its constitutional duty as a check and balance on the political process. Unfortunately, it is not clear that it will. * Erwin Chemerinsky is the Dean and Jesse H Choper Distinguished Professor of Law, University of California, Berkeley School of Law



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