Monthly Archives: June 2019

On the Citizenship Question

On the surface, asking whether someone is a citizen or not on the U.S. census could seem perfectly reasonable and appropriate, and in fact one could say that in another time it would be.  The trouble is that in the present climate of fear, many believe that it would deter many people from responding to the census and being counted.  And here’s the kicker:  both citizens and non-citizens, even though non-citizens can’t vote, are counted for representation purposes.  Therefore, a neighborhood with a large proportion of residents who go uncounted in the census will have weaker representation in Congress and in the state legislature–which is exactly what critics of the proposed measure accuse Trump of wanting to accomplish.  Again, non-citizens can’t vote, but if many non-citizens go uncounted in the census, it could weaken the voting strength of citizens who have a lot of unnaturalized immigrant neighbors.

The Supreme Court just handed Trump a defeat on this matter.  The ruling doesn’t exactly say that the citizenship question can’t be added to the census, but it does say that the Commerce Department is going to have to do a better job of justifying it, because for five of the justices (that is, Chief Justice Roberts plus the four liberals), Trump’s claim that he wants to enforce the Voting Rights Act more effectively just doesn’t add up.

Article in, June 27, 2019

(Please also note that there’s a news feed on this page with lots of other updates from the national political scene that you should be keeping up with.)

UPDATE: Supreme Court Ruling Says Federal Courts Can’t Touch Partisan Gerrymandering

First off, it needs to be remembered that the Supreme Court has ruled in the past that legislative districts have to be fairly equal in population size, and that gross inequalities in such size, which force a resident of one district to share a representative with many more neighbors than if one lived in another district in the same state, violate the 14th Amendment, equal protection under the law.  It has also been established that racial gerrymandering, the drawing of district lines to reduce the voting power of non-whites and to decrease the chances of non-whites being elected to office, is also a violation of the 14th and 15th Amendments (equal protection and voting rights, respectively).

But what about partisan gerrymandering?  Gerrymandering itself has been around for more than two centuries (the cartoon of the gerrymander appeared in 1813), but in recent times it’s been the Republicans who have made the most effective use of the tool.  By partisan gerrymandering, we mean drawing district lines to make sure that one party has a majority in the legislature even if the other party represents a majority of voters.  Wisconsin’s Republicans engaged in a particularly brazen form of gerrymandering, using a computer program to achieve that result.

The big question before the Court has been whether partisan gerrymandering is judiciable, that is, whether it is an issue that the courts can legitimately get involved in.  Before Anthony Kennedy retired, the configuration was that the four liberals (Kagan, Sotomayor, Ginsburg, and Breyer) believed it was judiciable and that the Court should take a stand; the four conservatives other than Kennedy (Roberts, Alito, Thomas, and Gorsuch who replaced Scalia) considered it non-judiciable; and Kennedy, through some of his past opinions, had indicated that he might be open to considering it judiciable.

But when the Court got the case challenging the Wisconsin plan, the justices surprised everyone by declining to resolve it at all.  Rather, they sent it back to the lower court to deal with the “standing to sue” question, that is, whether the case involved a plaintiff who could show personal injury from the system being challenged.  (Reminder: If you’re ever a lawyer bringing an ideological case, do not cut corners on the “standing to sue” criterion, because the best argument in the world can be shot down on a “standing to sue” challenge.)  The Court did this unanimously, even though they all knew (including the four liberals) that Kennedy was retiring and this was probably their last chance to interfere with partisan gerrymandering.

Okay.  Now we have the answer. Today, June 27, the Court has ruled 5-4 that partisan gerrymandering is not judiciable.  And this ruling was along straight party lines.  (Gorsuch has actually voted with the liberals in a couple of other rulings, but not this one.)  And so, at least where the Courts are concerned, it’s open season for partisan gerrymandering.

The state legislatures control the drawing of lines for both their own state legislative districts and the federal congressional districts.  Next year, 2020, there will be both a census and congressional elections.  Based on that census, the legislatures in 2021 will control the redrawing of the district lines.  Chances are, both the Republican and the Democratic parties will gerrymander the hell out of the states they control.  So the stakes of next year’s elections–including the state legislative elections, which most people pay much less attention to–just got higher.

Article in, June 27, 2019


Gay Couples and Wedding Cakes: Another Non-Resolution

Twice, the Supreme Court has been asked to decide whether it is all right for a bakery run by evangelical Christians to refuse to make a customized wedding cake for a same-sex couple, and twice, the Court has declined to address that question head-on, in both instances taking an action favorable to the bakery but not setting any precedent.

In 2018, in the case of Masterpiece Cake Shop v. Colorado Civil Rights Commission, the Court ruled in favor of baker Jack Phillips, but solely on the basis that the state commission had been dismissive of his religious faith rather than treating it as a serious and legitimate factor to be balanced against the law against discriminating on the basis of sexual orientation.  In other words, despite earlier rulings that suggested that a law merely had to be “generally applicable” in order to withstand religious challenges and demands for religious exemptions, that doctrine isn’t absolute and that the religious belief must be give proper value.  But it needs to be understood that this ruling did not say that the outcome would have had to be different.  In other words, it might have been acceptable for the state commission to issue punitive sanctions on the baker if it had done so more fairly and more politely.

This season now soon ending, the Court heard a very similar case from Oregon, involving a female couple.  In this instance, there was an action by a state commission and a state appeals court ruling upholding it.  After much deliberation, the Court declined to resolve the case, but rather, sent it back to the state appeals court with instructions to reconsider the case in light of the Colorado decision.

What needs to be clear is, this does not mean that the bakers, Aaron and Melissa Klein, are necessarily going to win it this time around.  It merely means that the state appeals court has to make sure that the state commission took the Kleins’ religious beliefs into account fairly and balanced those beliefs against the compelling state interest for its anti-discrimination law in the course of making its decision.  It needs to be clear that the Court has ruled only on what process must be followed in determining such cases, not what the outcome has to be.  The Court has yet to set any precedents where the outcome is concerned.

Article on SCOTUS blog, April 17, 2019.

My write-up on the Colorado case here on this course blog, June 4, 2018

For other updates on Supreme Court cases, here’s the main page of SCOTUS blog:  Please also note the news feeds at the right of this page, for general updates on what’s going on.