Supreme Court Gives New Life To MD Gerrymander Case

I’ve written about this previously, and today the Supreme Court breathed new life into a gerrymandering claim against Maryland’s 2011 congressional redistricting plan. By a unanimous vote of 9-0, the Court (per Justice Scalia) sent the case back to the district court to convene a three judge panel to hear the case on the merits. As previously noted, the precise issue before the court was procedural so this doesn’t mean that the claim will prevail. But please note this language - you can bet a dollar the three judges hearing the case will:

Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerryman- der had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly in- substantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. 

I was an appellate law clerk here in Maryland and I’ve been doing appeals my entire career. When an appeals court sends a case back to a lower court on procedural grounds and finds a way to address the merits of the case, that’s a total giveaway. Scalia is sending a clear message to the three judge panel who will hear the case that this is a legitimate claim that needs to be taken seriously.

You hear that ringing noise in the distance? That’s the death knell for Maryland’s 2011 redistricting plan. It just got a whole lot louder this morning - let’s watch and see what happens. This was a big first step in the right direction, not just for Maryland but for the entire country.

Abortion Back To The Supreme Court

The Supreme Court today announced that it has accepted a case challenging the 2013 Texas abortion laws which threaten to reduce from 42 to 10 the number of functioning abortion clinics in the state. As a result, the Couet will be deciding a major abortion case squarely in the middle of the 2016 presidential election campaign. The Post reports:

The Supreme Court on Friday decided to hear its first major abortion case in nearly a decade, agreeing to determine how far states may go in regulating the procedure without violating a woman’s constitutional rights.

It will be one of the court’s most consequential rulings on the morally and politically divisive subject, and it will land just months before Americans choose a new president. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between the Republican and Democratic candidates.

Numerous states have enacted restrictions that lawmakers say protect a woman’s health but abortion providers contend are merely pretext for making it more difficult to obtain an abortion or even making the procedure unavailable within a state’s borders.

The court agreed to review a sweeping law from Texas. Abortion providers say full implementation of the Texas law would reduce from 42 to 10 the number of clinics in the nation’s second-largest state. The court took no action on a case from Mississippi, where a similar law there would close the state’s only clinic if it were allowed to proceed. It was stopped in a lower court.

The outcome will turn on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. It said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.

Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Justice Anthony M. Kennedy is the only remaining justice among the three who wrote the Casey standard in 1992, and he will again be the pivotal justice in deciding whether the state restrictions violate it.

Planned Parenthood, not surprisingly, had a blast email out within fewer than 20 minutes. Here’s the lede.

If it is not decided on some narrow ground, this case will ultimately decide how far states can go in regulating access to abortion. The Court has never meaningfully defined the boundaries of the “undue burden” test set forth in the 1992 Casey decision. Watch this case carefully - as in Casey, a woman’s constitutional right to abortion could be on the chopping block in this case.

MD Redistricting Case Update

The Maryland redistricting case was heard in the Supreme Court yesterday. While Post reporter Robert Barnes’ article provides a good insight into the oral argument, he makes an inexplicable error that I really hope is not based on what’s in the court file.

Although about 40 percent of Maryland’s voters are Republicans, the state’s Democratic leadership drew its eight congressional districts to make seven safe for Democrats.

Wait, what? Um, actually, no. For the period between 2000 and September 2015, Republican registrations as a share of active registrations drifted downward from 30% to 25%. At no time were they anywhere near 40%. If I added in inactive voters, I suspect it’d be a good bit less. Can I get Glenn Kessler in here for a cleanup, please?

In any event, we’ll keep an eye on the case as a whole and see what happens.

The Roberts Court

The New York Times editorial board lets loose some Independence Day weekend venom at the Supreme Court’s record under Chief Justice John “Balls and Strikes” Roberts, which has now reaches its 10th anniversary. Some recent good news notwithstanding, the verdict is not a kind one.

What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

More Positive Supreme Court News

The Supreme Court has been a source of a lot of good news - not on everything - and just within the past half hour comes more, this time on access to abortion in Texas.

The Supreme Court issued a brief, two paragraph order on Monday permitting Texas abortion clinics that are endangered by state law requiring them to comply with onerous regulations or else shut down to remain open. The order stays a decision by the United States Court of Appeals for the Fifth Circuit, which imposed broad limits on the women’s right to choose an abortion within that circuit.

The Court’s order is temporary and offers no direct insight into how the Court will decide this case on the merits. It provides that the clinics’ application for a stay of the Fifth Circuit’s decision is granted “pending the timely filing and disposition of a petition” asking the Court to review the case on the merits. The Court adds that, should this petition be denied, the stay will automatically terminate. Otherwise, the stay “shall terminate upon the issuance of the judgment of this Court.”

While the substance of the order offers little insight into how the Court will ultimately decide this case, the final sentence of the order does: “The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application.” Notably absent from this list of dissenting justices is Justice Anthony Kennedy, a conservative who typically votes with his fellow conservatives in abortion cases, but who has also refused to overrule Roe v. Wade outright.

The fact that the four liberals voted to grant cert is crucial - on abortion cases in recent years, it had usually been the conservatives seeking to create bad law, and the liberals rarely voting to take new cases in fear of precisely the same outcome. Here, Justice Kennedy was with the liberals in agreeing to take the case, which means there is a very good chance that he sees the Texas regulations as going too far in the direction of overruling Roe v. Wade. More important than what I think is that Sotomsyor, Kagan, Breyer and Ginsburg obviously believe the same thing - otherwise, their vote to grant cert was foolhardy and counterproductive. We shall see.

Independent Redistricting Upheld

Not as good a day at the Supreme Court today as Friday (only one out of three decisions went the right way), but the one was very significant. In a moderately surprising development, Justice Anthony Kennedy again sided with the four liberal justices to uphold Arizona’s independent redistricting commission.

The commission was originally adopted by state voters via the initiative process in 2000, specifically to address partisan gerrymandering in the redistricting process. In 2012, following the commission’s redistricting plan for both congressional and state legislative districts, the state legislature sued, claiming that by stripping the legislature of its redistricting prerogatives, the voters of Arizona ran afoul of the Elections Clause of the Constitution, which states that:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Con­ gress may at any time by Law make or alter such Regulations . . . . Art. I, §4, cl. 1.

The Supreme Court today, in a 5-4 decision, opinion by the Notorious RBG, held that the creation by the voters of an independent commission to create congressional districts did not violate the above constitutional provision.

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representa­ tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­ tions Clause does not hinder that endeavor.

Any state - even those, like Maryland, that do not have the power of initiative, and thus require affirmative legislative action - that seeks to create an independent or bipartisan redistricting commission, can now do so secure in the knowledge then it will not be subject to constitutional challenge.

In Maryland, it would take a constitutional amendment passed by the General Assembly and then approval by the voters. I’ve advocated for such a process for years. Today’s decision should be a spur to such efforts. Let’s see what if anything happens. 

Texas Won’t Give Up

Every state in the country has, to one degree or another, accepted Friday’s Supreme Court decision on marriage equality. Mississippi may be stalling for time, but it’s no more than that. Texas, on the other hand, is special, particularly in its own theatrical and Alamo-addled brains. So Texas has decided to fight. Even though it has less chance of success here than Davy Crockett & Co. did in 1836.

On Friday, Governor Greg Abbott issued a statement decrying the ruling and invoking “religious liberty” as a basis for allowing state officials to continue to deny marriage licenses to same sex couples.

“Despite the Supreme Court’s rulings, Texans’ fundamental right to religious liberty remains protected. No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.

“The Texas Constitution guarantees that ‘[n]o human authority ought, in any case whatsoever, to control or interfere with the rights of conscience in matters of religion.’ The First Amendment of the U.S. Constitution guarantees the free exercise of religion; and the Texas Religious Freedom Restoration Act, combined with the newly enacted Pastor Protection Act, provide robust legal protections to Texans whose faith commands them to adhere to the traditional understanding of marriage.

“As I have done in the past, I will continue to defend the religious liberties of all Texans—including those whose conscience dictates that marriage is only the union of one man and one woman. Later today, I will be issuing a directive to state agencies instructing them to prioritize the protection of Texans’ religious liberties.”

Not to be outdone, even bigger right wing loon Attorney General Ken Paxton went further, claiming that Texas officials could refuse to issue marriage licenses based on religious conscience. 

Texas Attorney General Ken Paxton on Sunday stated that county clerks, judges and justices of peace can deny marriage licenses to same-sex couples for religious reasons, arguing that the Supreme Court did not abolish religious liberty.

Ken Paxton, in his nonbinding legal opinion, went on to add that “numerous lawyers” would be made available to defend public officials refusing to grant marriage licenses to same-sex couples, according to The Associated Press.

“This newly minted federal constitutional right to same-sex marriage can and should peaceably co-exist with longstanding constitutional and statutory rights, including the rights to free exercise of religion and freedom of speech,” Paxton’s opinion states. Republican Lt. Gov. Dan Patrick later requested to review the document.

I guarantee you that sometime this week, some Texas legislator will give a speech advocating for calling out the Texas Rangers to resist the issuance of marriage licenses to same sex couples, and authorizing the shooting of any damn Yankees that try to enforce the Supreme Court’s decision.

They really, really don’t like people messing with Texas. Don’t expect this resistance to end anytime soon.

Supreme Court: 2 For The Good Guys

No, not marriage yet, that’ll be tomorrow or Mondsy. But good outcomes in the ACA case and a housing discrimination case out of Texas.

First, the ACA. For legal nerds, this case was worrisome. A group of right wing cranks brought a suit claiming that because the subsidies for lower income individuals was available only on “exchanges established by the State,” subsidies were not available for policies purchased on th federal exchange, which became necessary when a number of red states refused to establish their own exchanges. A decision in favor of the plaintiffs wouLd have had the effect of destroying the exchanges and perhaps the entire ACA system. The case is King v. Burwell.

Long story short, the Supreme Court just a few minutes ago held, 6-3, that subsidies are available on the federal exchange. Chief Justice John Roberts and Justice Anthony Kennedy joined with the Court’s rational wing to uphold the contested law.

In a separate appeal from Texas, the Court also upheld use of a disparate impact analysis to prove housing discrimination. This result is even more of a surprise and even more welcome. Kennedy wrote the opinion for a 5-4 majority. The devil is in the details in cases like this, but at first blush, it’s an excellent result.

I just got the PDF of the two opinions and will post on them later, after I’ve had a chance to read them and see some of the law nerd reaction online. But for now, it’s a very good morning for Supreme Court watchers on the left.