SCOTUS Watch: partisan gerrymandering is ‘non-justiciable,’ and Census case is remanded to Commerce Dept.

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I’m going to take today’s decisions out of order, and review them by relevance instead.

As I expected, the two partisan gerrymandering cases (Lamone v. Benisek and Rucho v. Common Cause) were combined together into a single opinion. The court has for years avoided addressing the issue of partisan gerrymandering, with former Justice Kennedy suggesting that if a workable formula could be developed with which the courts could review such claims, he was open to considering it.

Today the court foreclosed that possibility. In a 5-4 decision by Chief Justice John Roberts, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, the conservative majority holds that partisan gerrymandering claims present a political question beyond the reach of the federal courts, and therefore are non-justiciable. Rucho v. Common Cause (.pdf).

The court holds that none of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable — e.g., there’s not a good test to use to decide them. From the end of the majority opinion: “No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”

Toward the end of his opinion, Roberts acknowledges that “excessive partisanship in districting leads to results that reasonably seem unjust.” But that does not mean, he says, that “the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Roberts says the states can pass laws to deal with partisan gerrymandering, and so can Congress. He points out that states are addressing this issue, and Congress has the power to do something about partisan gerrymandering. “We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.” Roberts writes, “What the appellees and dissent seek is an unprecedented expansion of judicial power.”

In dissent, Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, emphasizes the importance of this issue: “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” Justice Kagan points out that modern technology has allowed a degree of partisan gerrymandering that was never possible before. Justice Kagan, calls out the majority: “I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy.  Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” Justice Kagan’s closing paragraph: “Of all 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. With respect but deep sadness, I dissent.”

The holding is that the Constitution (federal) itself does not supply a justiciable standard for assessing partisan gerrymandering.  As Justice Kagan points out, this is not the same thing as saying that partisan gerrymandering is constitutional (as some early news reports I have seen have wrongly asserted, i.e., the NY Times).

State constitutional law or amendments — by referendums or initiatives — would be one way to address this problem of partisan gerrymandering, and is an open avenue that the Chief Justice suggests.  State courts could still adjudicate partisan gerrymandering claims under state constitutions, as the state Supreme Court of Pennsylvania has done. (These decisions are not reviewable by the federal courts). I would expect all the action on partisan gerrymandering to now move to state legislatures, ballot measures, and the state courts in the next round of redistricting after the 2020 Census.

I would hasten to point out that many state supreme court justices are elected by partisan elections, and are just as partisan as their state legislatures. See the recent action by the Wisconsin Supreme Court to uphold GOP ‘power grab’ laws: The conservative-controlled Wisconsin Supreme Court has upheld Republican-authored lame-duck laws limiting the powers of Democratic Gov. Tony Evers and Attorney General Josh Kaul. Republicans in several states have passed laws in lame-duck sessions following election losses in recent years (North Carolina and Michigan, for example).

Congress could also take action as an open avenue that the Chief Justice suggests. The court would review this on a statutory basis, rather than on a constitutional basis. There is no chance that the currently configured Congress wll take action before the 2020 election.

The controversial Census case, Department of Commerce v. New York (.pdf), produced an unexpected result. Chief Justice Roberts writes for a “unanimous” court as to parts of his opinion, but there is great division among the justices:

ROBERTS, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which THOMAS, ALITO, GORSUCH, and KAV- ANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined; and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part.

The case is affirmed in part, reversed in part, and remanded to the agency (Commerce). Here is the ruling in this case:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. See Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985). We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.

The judgment of the United States District Court for the Southern District of New York is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

The Court says that the Commerce secretary’s decision to reinstate the citizenship question was reasonable and reasonably explained, “particularly in light of the long history of the citizenship question on the census,” but on the other hand it says that it shares “the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the” Voting Rights Act. “In these unusual circumstances,” the court says, “the District Court was warranted in remanding to the agency, and we affirm that disposition.”

The partial concurrence from Justice Thomas agrees with the majority that the decision is not necessarily arbitrary and capricious, and then disagrees with the majority about remanding on the view that the justification the Secretary offered for the question was pretextual.

Justice Breyer, joined by the other liberal Justices, explains the reasons for his dissent from parts of the Chief Justice’s opinion: “I agree with the Court that the Secretary of Commerce provided a pretextual reason for placing a question about citizenship on the short-form census questionnaire and that a remand to the agency is appropriate on that ground.  But I write separately because I also believe that the Secretary’s decision to add the citizenship question was arbitrary and capricious and therefore violated the Administrative Procedure Act (APA).”

Justice Alito’s concurrence, which is in largest part a dissent, would hold that the question whether to include a citizenship question on the census form is committed to agency discretion by law — that is, essentially unreviewable. Justice Alito, in a separate opinion, he sounds the alarm that the decision today gives courts too much leeway to inquire into the subjective motivations of agency officials who make controversial decisions. Although the Court sends the case back to the agency, Justice Alito expresses the view that courts have no business “stick[ing] its nose into the question whether it is good polity to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were is only reasons or his real reasons.”

Justice Thomas concurs in part and dissents in part, in an opinion joined by Gorsuch and Kavanaugh. He says “our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. That ought to end our inquiry.”  Justice Thomas, dissenting from the decision to remand to the agency, criticizes the Court for “engag[ing] in an unauthorized inquiry into evidence not properly before [the Court] to reach an unsupported conclusion.”

Note: the Court does not address the new issues raised in the Petioners’ letters and the Fourth Circuit case. There is no discussion about the equal protection claim that the Maryland District court has recently decided to take evidence on after the new information came to light from a Republican redistricting expert’s hard drives following his death.

SCOTUSblog live blog summarizes the current posture of this case:

The Court has rejected the proposition that it is impossible for Commerce to add a citizenship question, but it has also held that it does not believe the voting-rights related justification that Commerce offered. That means Commerce gets another chance on remand to justify its decision. Commerce’s further explanation / rethinking of its Citizenship Question decision has to come from the agency itself, not just a brief filed in the court. That’s going to take some time, presumably. Whether it has the time to do that is a practical question, not a legal one.

If the July 1 printer’s deadline asserted by the Commerce Department in recent pleadings is accurate, then the government just ran out of time to include a citizenship question on the 2020 Census.

If the actual printer’s deadline is closer to October 30, as many others have argued, Commerce has time to assert another reason subject to challenge and review in the courts, which may also delay the process long enough to render the citizenship question moot.

It is not clear how the recent House Oversight Committee action against Commerce Secretary Wilbur Ross and Attorney General William “Coverup” Barr might affect this process. House Oversight votes to hold Barr, Ross in contempt over census dispute: The vote came just hours after President Donald Trump asserted executive privilege over materials related to the citizenship question.

It is also not clear what the Maryland District Court will do regarding the separate equal protection claim and new evidence to be taken in that case. The Commerce Department’s new justification might affect that proceeding.

The third opinion of the day is a plurality decision in Mitchell v. Wisconsin, by Justice Alito, joined by Justices Roberts, Breyer, and Kavanaugh; Justice Thomas concurs in the judgment. Justice Sotomayor dissents, joined by Justices Ginsburg and Kagan. Justice Gorsuch also dissents. The Wisconsin Supreme Court’s decision is vacated and remanded.

This was a challenge to a blood test of an unconscious drunk driving suspect. The court holds that the exigent-circumstances rule “almost always permits a blood test without a warrant.” “When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test.” When a driver is unconscious, Alito concludes, “the general rule is that a warrant is not needed.” Justice Alito’s opinion is only for four Justices, it appears, because Justice Thomas would enact a per se rule that all blood draws are permissible in these circumstances. Thomas’s opinion is broader than the plurality, so the plurality rule is controlling here.

Justice Sotomayor in dissent would hold that “there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case.” The dissent criticizes the majority for relying on “exigent circumstances” because Wisconsin did not argue that exigent circumstances were present in this case.

Justice Gorsuch says he would have dismissed the case as improvidently granted.

Finally, in something of a surprise, the court announced that Carpenter v. Murphy, at issue whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a), will be restored to the calendar for reargument in the next term. So no decision.

H/T SCOTUSblog live blogging of opinions.