Of Horses, Carts, and Gerrymandering

On Wednesday, the United States Supreme Court heard arguments “in a challenge by Republican voters to a U.S. House of Representatives district in Maryland that was reconfigured by Democratic state legislators in a way that helped the Democrats defeat an incumbent Republican congressman.” [1] That is, the Maryland Democrats engaged in gerrymandering, that societal pestilence that every principled person opposes, but for which a cure has yet to be agreed on.

And that was precisely the problem facing the Court. Sure, we know there is partisan gerrymandering, but what to do about it appears to perplex our best minds.

1812 Political Cartoon

The first question is whether the courts should get involved at all. The second is, if the courts should get involved, what standard should be applied.

Now if the Court decides that it shouldn’t trouble itself with a political issue of this kind, your humble servant encourages the reader to view it as a cop out. The only reason for gerrymandering is to tip the playing field in favor of one party, to create a situation where one point of view is underrepresented in relation to the number of people who hold to it. If such a practice is allowed to go on unimpeded, any suggestion that we live in a republic will, once and for all, become a mockery.

During the arguments, Justice Stephen Breyer recognized the constitutional violation in having “deliberate, extreme gerrymandering,” but wondered whether there “is there a practical remedy that won’t get judges involved in every — or dozens and dozens and dozens of very important political decisions?” In other words, how can the Court enunciate a standard that can be applied across a wide variety of gerrymandering cases?

It would be difficult to come up with such a standard. It might even be impossible. But, as they say, so what?

Associate Justice Stephen Breyer

The Court isn’t being called upon to decide every gerrymandering case that might arise in the future. It is being called upon to decide the case before it. The Supreme Court isn’t required to come up with a general principle that will apply to all cases, then apply that principle to the case before it. Instead, principles develop over time from the decisions that are made in a particular area. Indeed, a mechanical application of a rule without reference to the concrete case before the Court runs the danger of working an injustice, since the facts of one case may materially differ from another, even if both cases share subject matter.

There is no precedent for the Court striking down a gerrymandering scheme concocted to favor a particular political party. But the fact that such schemes strike at the very heart of republican government cannot be denied. What the Court should do here is strike down the gerrymandering device with which it is now confronted, and explain its reasons. Precedent will then be created, and the rule that can be gleaned from that precedent will develop as more cases involving political gerrymandering come before it.

That’s how it’s supposed to work in common law countries like the United States. For the Court to impose upon itself the obligation to come up with a general rule that will cover all political gerrymandering cases in the future before it dares to make a decision would entail a classic case of horse and cart inversion.

The Law on High Pillars

On March 20^th, the Supreme Court issued its opinion in the case of Cyan, Inc. vs. Beaver County Employees Retirement Fund, wherein it interpreted the Securities Litigation Uniform Standards Act of 1998. [1] The case presented two issues: (1) whether state courts have been stripped by the Act of jurisdiction over class actions against companies which fail to make “full and fair” disclosure when offering securities to the public, and (2) even if state courts still have jurisdiction in such cases, whether the Act gives defendants the option of removing those cases to federal court. The court answered “no” to both questions.

But your humble servant does not intend to discuss securities law in this post. Instead, he would like to talk about the oral argument in this case that took place before the Court on November 28^th of last year as described by Ronald Mann, who writes for SCOTUSblog [2], regarding which he wrote that the “key word” in the argument “was ‘gibberish’ – the characterization by several of the justices of the text Congress provided in the Securities Litigation Uniform Standards Act of 1998. The argument revealed the justices’ frustration at the statute’s sloppy craftsmanship.”

The U.S. Supreme Court

Justice Samuel Alito expressed his dismay this way:

“Our late colleague [Antonin Scalia] wrote a book called Reading Law, which provides guidance about how you read statutes. And I looked through that to see what we are supposed to do when Congress writes gibberish. And that’s what we have here. You said it’s obtuse. That’s flattering. And we have very smart lawyers here who have come up with creative interpretations, but this is gibberish. It’s … just gibberish.”

Justice Neil Gorsuch shared that perspective, describing the legislation as “’gibberish all the way down here.’” For his part, Justice Alito wondered if the Court could really do anything with the legislation. As Ronald Mann wrote,

“For Alito, the drafting went far beyond the normal range of ambiguity or lack of clarity. Indeed, he suggested at one point that the statute in this case was so poorly crafted as to make the judicial task impossible: ‘I mean, all the readings that everybody has given to all of these provisions are a stretch. I’m serious. Is there a certain point at which we say this means nothing, we can’t figure out what it means, and, therefore, it has no effect, it means nothing?’”

James Madison

These sentiments might be behind the Court’s opinion that was issued this week. Ronald Mann man says that “a plain-language summary of this opinion would simply state that ‘if Congress wants to make any important changes to litigation of federal-law securities cases in state courts, it is going to have to be a lot more specific than it has been to date.’” [3]

But, really, this is a problem that extends beyond this case and the legislation at hand. Legislation on both the state and federal level is too often obscured by legislative drafting. Constant referring back to other legislation makes reading statutes an exercise in puzzle solving. The complexity of the language used too often makes a statute susceptible of more than one interpretation. The length of bills is often such that it is evident that legislators are voting on laws that they have never read.

A good example of this last problem is the Affordable Care Act, which turns out to be full of surprises; this, even though the aspects of the legislation that people really cared about—e.g., the subsidies, guaranteed issue, and community rating—could have been dealt with in about five pages. And the entire Act was drafted with apparently little or no regard for whether any of it would pass constitutional muster. The Supreme Court struck down the Medicaid expansion, and there were sound arguments for tossing the entirety of the legislation. That it was upheld at all was transparently a political act rather than a strictly legal decision. And that is how Congress elected to deal with America’s health coverage crisis!

In Federalist No. 62, James Madison pointed out, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood….” [4] And Sir William Blackstone described the law, in part, as “’a rule prescribed.’ Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it…. not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” [5]

Sir William Blackstone

Perhaps it is not far off to describe much of our own law as no law at all, as Caligulan in its volume and incoherence as it is. Not only is a great deal of our law out of reach of the comprehension of the average person, even the justices of the highest Court in the land have difficulty with it. How much difference between this and placing the law in small characters on high pillars?

Something should be done, clearly. But your humble servant must concede that the only remedy he can conceive of has the aura of the preposterous around it, though that view may only be a symptom of an ingrained aversion to the new and unusual. That remedy is to require every sponsor of a bill to write his or her proposed legislation completely by hand, and then read the entirety aloud on the floor of the legislature. Whatever could be said against this idea, it would ensure that at least one member of the legislature had read the legislation they are voting on.

But there may be other ideas.

Unfixing the Star

On January 9, 1942, the West Virginia State Board of Education “adopted a resolution…ordering that the salute to the flag become ‘a regular part of the program of activities in the public schools,’ that all teachers and pupils ‘shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.’” [1] What was ultimately required after some modification was “the ‘stiff-arm’ salute, the saluter to keep the right hand raised with palm turned up while the following” was “repeated: ‘I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.’” (The words “under God” were not added to the Pledge of Allegiance until 1954. [2])

Certain Jehovah’s Witnesses “citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses….Their religious beliefs” included, then as now, “a literal version of Exodus, Chapter 20, verses 4 and 5, which says: ‘Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.’ They” considered “that the flag is an ‘image’ within this command. For this reason they” refused “to salute it. Children of this faith” had “been expelled from school and” were “threatened with exclusion for no other cause. Officials” threatened “to send them to reformatories maintained for criminally inclined juveniles. Parents of such children” had “been prosecuted and” were “threatened with prosecutions for causing delinquency.”

Confronted with these facts, the United States Supreme Court discerned that it was “dealing with a compulsion of students to declare a belief.” The “compulsory flag salute and pledge, it said, required “affirmation of a belief and an attitude of mind.” To sustain such a requirement, the Court said, would have required it “to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”

It was clear, then, that the requirement of the West Virginia State Board of Education to salute the flag and recite the Pledge of Allegiance could not constitutionally be enforced against the objecting Jehovah’s Witnesses. As the Court put it,

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

All these years later, the lesson still hasn’t sunk in.

On Tuesday [3], the Supreme Court will hear oral arguments in the case of National Institute of Family and Life Advocates v. Harris, which presents the following scenario:

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act “requires that licensed pregnancy-related clinics disseminate a notice stating the existence of publicly-funded family-planning services, including contraception and abortion.” [4] The National Institute of Family and Life Advocates, and others, object to having to advertise abortion services, which they conscientiously object to.

Now since it is a “fixed star in our constitutional constellation,” that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” one might expect that their case is pretty solid. Unfortunately, two courts, the federal district court and the Ninth Circuit Court of Appeals, have disagreed.

The reasoning of the Ninth Circuit is that every licensed pregnancy-related clinic is required to give the notice, not just those that are opposed to abortion, and so the requirement should stand. It is as if the Supreme Court had said that West Virginia’s flag saluting requirement had no constitutional defect because everyone, not just Jehovah’s Witnesses, were required to comply with it. Of course, under that reasoning, every regulation of general application would be immune from any sort of constitutional scrutiny.

No one should be compelled to engage in speech that he or she disagrees with. The Supreme Court should strike down the California law in question.