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maxwellyjordan · 5 years

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Gerrymandering symposium: Janus-like judicial restraint in political gerrymanders and the census

Ken Klukowski is Of Counsel at First Liberty Institute, Senior Legal Analyst for Breitbart News and Senior Fellow at the American Civil Rights Union.

Observers studying the partisan-gerrymander cases on the last day of the Supreme Court’s term would have at least two takeaways: First, this is the Roberts Court in every sense of the word. Second, the judicial restraint central to the political-gerrymander cases was nowhere to be found in the census case.

June 27 brought newsworthy drama at the nation’s highest court, with two of the biggest cases coming down in 5-4 split decisions. One was clearly a win for constitutional conservatives, the other a short-term win for the left, a long-term win for the right, and a remand that tosses the matter back to President Donald Trump to see if he can thread the needle of expedited court hearings coupled with a compressed printing schedule for 2020 census forms.

The win for originalists and textualists—to use the professional terms that describe the constitutional conservatives mostly found in the Republican Party base—came in the form of two partisan gerrymander cases that the court decided together in a single decision. The court held 5-4 that federal judges lack the tools to decide these cases. Chief Justice John Roberts wrote the majority opinion.

Interested observers should also have a third takeaway: Many legal commentators do not really understand the Supreme Court cases on which they are commenting. Many in the media are getting this case wrong, saying that the justices failed to decide it because they did not reach the merits of the lawsuit. Quite the contrary, it was a major constitutional decision on the limits of the power of federal courts, ending decades of punting on this recurring controversy.

The concept of political gerrymanders is built on the case law for racial gerrymanders. Racial-gerrymander cases refer to legislatures attempting to “pack” racial groups into certain districts or “crack” other districts to disadvantage those racial groups. Groups and individuals associated with the political left argue that partisan gerrymanders should likewise be unconstitutional.

Although much of the commentary this year has ignored it, Supreme Court precedent is clear that “a jurisdiction may engage in constitutional political gerrymandering” and that “political considerations are inseparable from districting and apportionment.” As a consequence, these cases task judges with “determining when political gerrymandering has gone too far.” A “partisan gerrymander” is thus a “hyper-political” gerrymandering exercise.

As Justice Anthony Kennedy wrote in a concurring opinion in Vieth v. Jubelirer, courts would need to articulate a “limited and precise rationale” and a rule that is “clear, manageable, and politically neutral” to decide partisan-gerrymander cases. But as Justice Antonin Scalia wrote for the plurality regarding the Supreme Court’s mandate from Marbury v. Madison to declare “what the law is” is, sometimes “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.”

Scalia’s opinion was based on the political-question doctrine articulated by the court in its landmark 1962 case, Baker v. Carr. Specifically, the prong from Baker’s six factors that one of the hallmarks of a nonjusticiable political question is legal challenges to facts when there are no “judicially discoverable and manageable standards” for resolution.

In Common Cause, Roberts elevated Scalia’s reasoning for a plurality of justices as the holding of the court, creating binding precedent going forward. The chief justice explained the dilemma for partisan gerrymanders as “whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.”

Roberts noted that from the Framing, the Constitution allowed for statewide at-large elections for Congress, and that single-member congressional districts were not mandated by federal law until 1842, when Congress exercised its authority under Article I’s elections clause.

The court rejected the argument that the judiciary never has a role in claims like the ones in Common Cause, noting that the 14th Amendment’s equal protection clause—adopted in 1868—authorizes judicial action on some types of claims, including racial gerrymanders. But with few exceptions, the Constitution assigns “the issue to the state legislatures, expressly checked and balanced by the Federal Congress.” The court observed, “At no point was there a suggestion that the federal courts had a role to play.”

To the contrary, Roberts quoted Justice Sandra Day O’Connor—a justice who had “extensive experience in state and local politics”—who wrote that the “opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the Unites States.” Given that these are among “the most heated partisan issues,” it is critically important for federal judges to apply rules of law that are clearly devoid of politics.

After exploring various theories and approaches, Roberts observed:

Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernable in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.

In other words, the court majority sees such cases as inviting unelected, politically unaccountable judges to babysit politicians, telling them not to be too political when engaged in the uber-political activity of deciding how much protection to afford their own seats for upcoming elections. There are no workable legal standards for nonpolitical judges to employ to resolve such purely political struggles.

Contrast this entire paradigm of judicial restraint in Common Cause with the philosophy underlying Department of Commerce. In that case challenging asking census respondents if they are U.S. citizens, Roberts acknowledged that constitutional and statutory requirements appear to be satisfied, but was the fifth vote to remand the case to explore whether the government’s explanation for asking about citizenship was mere pretext to mask some tainted political motive.

There, Justice Samuel Alito noted in his dissent the Administrative Procedure Act’s exemption from judicial review of matters “committed to agency discretion by law.” Section 141(a) of the Census Act says that the census shall be conducted each decade in “such form and content as [the Commerce Secretary] may determine, including the use of sampling procedures and special surveys.”

Even if the APA allows judicial review of the citizenship question, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, noted that APA requirements are not overly demanding to clear the bar that a decision not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Thomas noted that Commerce Secretary Wilbur Ross carried his burden of explaining a reasoned decision. These dissenting justices argued that the APA does not authorize federal courts to be more intrusive in their review. Therefore, courts should not entertain theories of additional political motives not disclosed to the courts, or claim authority to overturn agency actions if judges decide the facially valid explanation found in the administrative record is pretextual.

Both decisions—Common Cause and Department of Commerce—were authored by the same justice, on the same day, handed down merely minutes apart. There seems to be a tension between these two cases. Some critics may note that the citizenship case was very high-profile, comparable to (though less controversial than) the court’s 2012 Obamacare case, NFIB v. Sebelius. These critics are already saying that Department of Commerce reveals a pattern suggesting that if politicians, activists and the media make a legal case controversial enough, public pressure can influence the chief justice’s vote to change the outcome of a Supreme Court case.

Such cases will provide fodder for legal strategists and political strategists alike going forward. But regardless of the explanation for the seeming disparity between these cases, partisan gerrymanders will no longer be a contentious item on federal-court dockets going forward. Common Cause has rightly extracted the federal judiciary from political controversies that judges are not equipped to decide.

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maxwellyjordan · 6 years

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Relist Watch

John Elwood previews next Monday’s likely relists.

With my long-awaited argument finally out of the way, my preparations will no longer keep me from creating humorous and informative posts on the relisted cases the Supreme Court is considering; instead, my lack of talent will.

We had fairly little movement at the last conference. We got an opinion respecting the denial of certiorari in two cases that had been relisted five times. And one new grant in a case involving Yeezy’s latest persona.

But things are afoot with respect to some of the repeat relists. Remember United States v. Wheeler, 18-420? That’s one of four cases (all on their third relist) now before the court that present the question whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed. On the day before conference, the solicitor general wrote the court a letter to tell it that Gerald Wheeler had that very day won habeas relief and been resentenced to time served; the government argued that “the grant of habeas relief to shorten [Wheeler’s] term of imprisonment means that this case continues to present a live controversy regarding the permissibility of such relief.” But Wheeler’s counsel wrote the very next day to argue that this “development counsels against a grant of certiorari at this time, not in favor of it.” That represents one more complicating factor as the Supreme Court decides which of the four cases represents the best vehicle for resolving this obviously recurring question. The likeliest beneficiary is Detric Lewis, the only other counseled prisoner who is raising the same issue, and who earlier filed a supplemental brief that suggested that this kind of complication made Wheeler’s case a bad vehicle.

On to the new relists. The court typically doesn’t relist cases until the Monday before the next conference, which won’t occur until March 15. But we can make an informed guess about what the relisted cases will be. We think there will be two, both from the U.S. Court of Appeals for the 11th Circuit. (There are also two cases that are likely holds for United States v. Davis; one of the petitioners argues that his case is a better vehicle than Davis and should be heard in tandem with it. I think that’s unlikely to happen, but it’s hard to tell holds from relists before the docket is updated. Check back after the March 15 conference.)

First up is Patterson v. Walgreen Co., 18-349. Darrell Patterson is a Seventh-day Adventist. He was scheduled for work as a trainer for customer-care representatives one Saturday morning, during his sabbath. Walgreen proposed to accommodate Patterson the same way it previously had, by allowing him to swap shifts with someone else working in the same job, but that person was unable to accommodate the switch. (Patterson also says he was discouraged from swapping with that person.) After being unable to reach a supervisor, Patterson didn’t show up for the shift. Walgreens then offered to transfer Patterson back to the position he had previously held as a customer-care representative. (Patterson says this would have been a demotion; Walgreens argues it was not shown that the transfer would have entailed a pay cut.) Although Patterson could have been scheduled for Saturday shifts even after the job change, there would be a larger pool of people for Patterson to swap shifts with. After Patterson declined the change in position, Walgreens fired him.

Patterson sued, saying he was fired because of his religion in violation of Title VII; Walgreens said it had reasonably accommodated Patterson’s religious observance and that doing any more would impose an “undue hardship on the conduct of the employer’s business,” and that its conduct therefore was lawful under 42 U.S.C. § 2000e(j). The district court held that Walgreens had reasonably accommodated Patterson’s religious beliefs by permitting him to swap shifts and by offering him the possibility of transferring to other positions that would make it easier to swap shifts when needed; it further held that Walgreens would suffer undue hardship by ensuring that Patterson would never be scheduled for Saturday hours. The 11th Circuit affirmed. Patterson, supported by five amicus briefs (including one filed by the person who moved my admission to the Supreme Court bar during an earlier century), argues that his case implicates two circuit splits, one involving whether an accommodation is “reasonable,” and the second involving when a burden constitutes “undue hardship” for an employer, and that it also gives the court the opportunity to revisit some ill-considered language in Trans World Airlines Inc. v. Hardison. The case has already been rescheduled twice, so clearly, someone at the court has been paying attention to it. Because the case seems fairly fact-intensive, it will be interesting to see whether it gets traction.

That brings us to our second apparent relist, Tharpe v. Ford, 18-6819. Keith Tharpe was convicted of murdering his sister-in-law and raping his estranged wife, and he was sentenced to death. After conviction, Tharpe’s lawyers obtained a “remarkable affidavit” from one juror that – in the words of the Supreme Court’s last opinion in this case – “presents a strong factual basis for the argument that Tharpe’s race affected [the juror’s] vote for a death verdict.” (About the mildest statement in it was: “After studying the Bible, I have wondered if black people even have souls.”) After Tharpe’s sentence became final, he unsuccessfully challenged it on federal habeas, arguing that the affidavit was proof that racial animus may have affected the jury’s decision to sentence him to death. But the district court denied relief, stating that at the time of the trial, Georgia law prohibited impeaching the jury’s verdict with extrinsic evidence. Although the district court noted that the Supreme Court had later ruled in Pena-Rodriguez v. Colorado that there is an exception to the no-impeachment rule when a prisoner comes forward with “compelling evidence” that racial animus was a significant motivating factor in the verdict, it held that Pena-Rodriguez did not apply retroactively.

During this case’s last trip to the Supreme Court, the justices held 6-3 that the 11th Circuit had erred in holding that it is “indisputable among reasonable jurists that [the juror’s] service on the jury did not prejudice Tharpe.” (Writing for himself and Justices Samuel Alito and Neil Gorsuch in dissent, Justice Clarence Thomas noted that the juror gave a second affidavit in which he said he had been drunk at the time he signed the first affidavit, and had voted as he had because of the evidence and not his views of African-Americans; and that the other 11 jurors, two of whom were black, gave evidence that race had played no role in the jury’s deliberations.) On remand, the court of appeals again denied a certificate of appealability, holding that Pena-Rodriguez did not apply retroactively to cases on collateral review, and that Tharpe had failed to show cause to excuse his procedural default. Tharpe seeks to revisit that determination.

That’s all for this week. Thanks to Tom Mitsch for compiling the relists.

New Relists

Patterson v. Walgreen Co., 18-349

Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of Trans World Airlines Inc. v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled.

(rescheduled before February 15 and February 22 conferences; likely relisted after the March 1 conference)

Tharpe v. Ford, 18-6819,

Issues: (1) Whether Pena-Rodriguez v. Colorado applies retroactively to cases on collateral review; and (2) whether the U.S. Court of Appeals for the 11th Circuit erred in concluding that no reasonable jurist could debate whether petitioner’s colorable claim – that his death sentence is invalid because a juror voted to impose it based on petitioner’s race – together with the Supreme Court’s intervening decision in Pena-Rodriguez constitute extraordinary circumstances under Federal Rule of Civil Procedure 60(b) that would warrant reopening petitioner’s federal habeas proceeding to address the merits of that claim.

(likely relisted after the March 1 conference)

Returning Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4, January 11, January 18, February 15, February 22 and March 1 conferences)

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4, January 11, January 18, February 15, February 22 and March 1 conferences)

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.