As unsurprising as the Supreme Court's intervention in the Texas redistricting case may have been, Justice Kagan's dissent is still a telling indictment of another emergency ruling that lost its way.
Does the invocation of Purcell stick a fork in new efforts by states to pass new maps, such as in Indiana, Ohio, and Virginia? Or does the Purcell principle only apply to courts striking them down, leaving states free to do what they want?
The colonies allowed private nominations for public offices & we grandfathered them in, not realizing they'd eventually strangle our elections and defeat representative government.
But public primaries for public offices were mandated in Amendment XXIV (yes, the Poll Tax amendment!). This was ignored for a long time, but not any more. Alaska passed nonpartisan US elections in 2020. Nebraska has nonpartisan state elections. Several states are working on nonpartisan primaries. Not only will this make a difference, it will make it easier to get 100% public campaign funding.
Some members of the Court owe their seats to McConnell's view of fluid exigency, so 2026 is 2025 when favorable. It has been downhill for our system since Rucho. As noted, no surprise.
Putting politics and ideology aside, it seems to me that this SCOTUS is making a tremendously powerful argument for either (1) amending “for life” appointments to accommodate a generous maximum retirement age; or (2) expanding the size of the Court. It is evident to me that the Court cannot keep up with its workload. The Emergency (Shadow) Docket is becoming a travesty of justice. Their slow pace on these cases itself works patent injustice. It creates a reason to disgracefully disregard the district court system and bog down the wheels of justice in the Supreme Court, where it evidently cannot keep up and makes questionable determinations without full court briefing and consideration. The ensuing delay hurts everyone and everything except the misguided Executive to whom the Court has decided to bow and thereby elevates the Executive from its normal position as an equal branch to a superior one.
How do we shake up the Chief Justice to understand that he will be responsible for radical changes to SCOTUS structuring once the political dynamics change as they surely will? What does it take to have him hear: “Get off your rear and face the mess you have created. Crack a whip and get the work done with full consideration and respectful legal reasoning in writing with signature ownership and due respect for precedent, the record in the cases before you, and the long standing principles of statutory construction. Stop making ‘rules for the ages’ and just decide the cases and controversies in front of you now. Less hubris and more hard work. Even originalists should expect no less.”
Prof. Vladeck, in the past, strongly opposed court expansion because he feared it would delegitimize an institution that is still worth having.
I think court expansion is still a dream (only a small fraction of the Democratic caucus even talks about it), but his opposition has, by now, seems naive.
Term limits and retirement age reforms are all fine and good, but especially since they are not likely to be applied to current occupants, they won't alone solve the problem. Anyway, I think SV needs to firmly address the elephant in the room, though perhaps I missed it.
Why not apply a maximum age to those who have passed it when the age is legislated? It is 'normal' to grandfather existing non-conforming activities, but it is not required by law. And when it's great-grandfathering, the arguments for it are even weaker.
When the law changed in Canada (in 1927) to put a maximum age of 75 on Supreme Court judges, the oldest judge - then 88 - had to step down. I don't think anyone cared...
Michael, you're right that "SCOTUS is making a tremendously powerful argument for" why we all should stop saying that SCOTUS justices have appointments “for life.” The most fundamental reason we should stop repeating that falsehood is that it's plainly contrary to our Constitution.
Our Constitution carefully emphasized that no government can appoint anyone to any position "for life." Article I emphasized that neither the federal government nor any state can grant any "Title of Nobility." Article III expressly emphasized that the term of all federal "Judges, both of the supreme and inferior Courts" will be limited to their good behavior: they "shall hold their Offices [only] during good Behaviour."
It's high time that Americans lobby for legislation that will permit removing federal judges for behavior that clearly is not good, i.e., violating their oaths and our Constitution. As Alexander Hamilton emphasized in Federalist No. 79, only federal “judges” who “behave properly, will be secured in their places for life.”
As Article I emphasized, Congress has the power (and the duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by [our] Constitution in the Government of the United States, or in any Department or Officer thereof." That necessarily includes the power of judges on "the one supreme Court" or any "inferior Courts."
Clearly, legislation governing the removal of judges for conduct that is not good behavior is necessary and proper. As Hamilton emphasized in Federalist No. 78, “there can be no room to doubt that” the failure to establish “GOOD BEHAVIOR as the tenure” of “judicial offices” “would have been inexcusably defective.” Absolutely “all judges” appointed to federal courts “are to hold their offices” only “DURING GOOD BEHAVIOR.” “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” It was included in the Constitution to be an “excellent barrier to the encroachments and oppressions of [every] representative [authority, including judges]. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
Professor Vladeck is edging toward a realistic view of the Court - which shoukd be on the far nihilist end of his cynicism vs nihilism spectrum. Thus court is simply corrupt, it was bought a long time ago. The country would,be far far better off with no court than this one. It deserves absolutely no reseprct.
The video and statements by legislators about the duty of all members of our Armed Forces to refuse to obey unconstitutional orders by officers of the executive branch apply with equal force (and for the same reasons) to the duty of all judicial officers (including all judges and all attorneys) to refuse to obey unconstitutional orders by officers of the judicial branch.
Our Constitution (our first and most important words as a nation) started by emphasizing that “We the People” did “ordain and establish [our] Constitution” to “secure the Blessings of Liberty to ourselves.” The People expressly acted as the supreme legislative body in the U.S. to establish “the supreme Law of the Land.” Article VI and the oaths of office of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” emphasized that the foremost and constant duty of every such public servant is “to support [our] Constitution” in all official conduct.
Judges and lawyers (especially lawyers employed by the federal government) cannot presume or pretend to be bound by unconstitutional "orders" merely because they were issued by 5 or so SCOTUS justices. Federal law (5 U.S.C. Section 3331), which our Constitution declares is included in “the supreme Law of the Land,” requires every “individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services” to publicly promise (and publicly acknowledge that his foremost and constant duty is) to “support and defend [our] Constitution” against “all enemies, foreign and domestic” and to “bear true faith and allegiance to” our Constitution (not to any mere politician, party, judge or so-called judicial doctrine).
I agree. The court doesn’t care. This is a completely compromised and corrupt court - its intention is to fundamentally change the governing structure of the country and to make an authoritarian president a permanent feature.
The word “justice” and the names of each member of the gang of 6 should never be used in proximity to one another. Hard to find a more despicable, oath-breaking, treasonous gang.
The court has adjusted Purcell to better emulate the McConnell’s rationale for holding open till January 2017 the vacancy left by Justice Scalia’s death in February 2016.
I'm not a lawyer, which can make it hard at times to understand Court rulings and nuances. I reread the majority opinion in Rucho over the weekend. A couple of questions:
1. Under Rucho, could a state politically gerrymander people completely out of being in any district at all? If not, what prevents that?
2. Are there any restrictions on the shape of districts or continuity of districts? As an extreme (and impractical) example, could a state assign people to districts on a house by house basis? Or maybe less extreme, have people in the farthest northwest corner of CA be in same district as people in the farthest southeast corner of the state?
Other (older) cases hold that (1) districts must, when added together, cover the whole state; (2) they must be roughly equal in size; and (3) they must be contiguous, meaning you can walk from one point in the district to any other.
Assuming, that is, one can walk on water, or at least breathe underwater, as bodies of water may completely cleave a district tnto two or more non-contiguous pieces (that is, only contiguous if you count the land under the water).
Change "walk without leaving the district" to "walk or swim or row a boat without leaving the district". Or more technically: for any two points in a district, there exists a continuous curve on a map that connects those points and which never leaves the district.
Seriously, though, the combination of geometric criteria (contiguity, compactness) and political criteria (e.g., proportionality) for drawing district maps makes the problem almost hopelessly complex. It's interesting to see how much mathematics lies behind some of lawsuits over redistricting (e.g., see the first link below, which cites (directly or indirectly) the other articles I list).
Any chance that Rucho "overruled" these older cases given the court said that partisan gerrymanders are non-justiciable in the federal courts? For example, a state's partisan gerrymander to ensure its preferred party had all the congressional seats ended up with x number of people being in no district. SCOTUS has "overruled" prior precedents without explicitly stating so (e.g., Lemon test).
As a side note, I find it interesting that if the various relevant "identity groups" (ethnic groups, etc.) were more or less uniformly scattered across a state, the rules for drawing congressional districts would be conflicting. For example, in a state where about 20% of the population is black, following the contiguity and compactness rules would ensure that each district has about a 20% black population, which would violate the rule of proportionality; i.e., that black voters should be a majority in about 20% of the districts to enable proportional representation (according to race, etc.). So the current rules rely on the existence of a fair degree of segregation to achieve fairness, even though segregation is considered undesirable by many people.
In any event, depending on the outcome of the Louisiana case argued in October, it may become unconstitutional to consider race in the context of proportionally representing minorities anyway.
What a contrast Abbott is with the Court’s treatment of “affirmative action” in universities designing their admission policies. (1) In the case of the universities, “diversity” may be a legitimate goal but only if you don’t ever use race. (2) But for states calculating which voters will be included in Congressional districts “gerrymandering“ seems now to be a legitimate goal (!!) and use of race in doing so is O.K. if you can “find” that the “original impetus” (per Alito’s concurrence) prompting the gerrymandering was “partisan advantage”-- which of course will always be the case.
We'll find out if it is more correct to be a nihilist or a cynic about the SCOTU-6 when California's gerrymander comes before the Court. We'll find out if the SCOTUS-6's Constitutional principle is "Party gerymanders are good" or "Republican gerrymanders are good."
In “The Week Ahead” you refer back to your February 6th post on the “unitary executive” (UE) theory. The comments to that post make clear that those opposed to UE theory have not adequately articulated a legally persuasive alternative theory for how these cases should be decided. Your own comments on this seem to suggest that the Court should adopt what might be called a “principle of wisdom” approach, in which the court would allow ad hoc deviations from a strict UE approach when necessary to achieve reasonable policy goals, such as avoiding abrupt changes in policy over multiple administrations (via multi-member fixed-term regulatory commissions) or ensuring that investigations in which the President is an interested party are carried out by independent investigators. But the “principle of wisdom” approach is not very compelling, because it has no grounding in the language of the Constitution, and because one person’s wisdom is another person’s folly. You need to articulate a more compelling alternative theory of the constitutional limits on presidential power. One option would be to argue that the “executive power” is the power to execute the laws jointly enacted by the Congress and the President, and that to the extent that those laws limit the authority of the President to choose his or her own officers, or to direct the actions of certain agencies, they are valid exercises of the Congress’ Article I powers and constrain the President’s Article II powers. That might not be the best approach. But we certainly need to come up with a better theory for what the President’s powers are than this vague “principle of wisdom” approach.
The country's most uninformed, yet most powerful policy body has spoken once again. The neither the 15th Amendment nor the Voting Rights Act require that courts give states a "presumption of good faith." A better informed (or less willfully blind) jurist might argue that if states had mostly acted in good faith in facilitating voting, neither the 15th Amendment nor the Voting Rights Act would have been necessary!
Of course they won't actually come out and say it, but the MAGA 6 truly believe that neither have ever been necessary, and since they are the smartest people who have ever lived (much smarter than the authors of these things) they'll abuse their power to reverse both.
Does the invocation of Purcell stick a fork in new efforts by states to pass new maps, such as in Indiana, Ohio, and Virginia? Or does the Purcell principle only apply to courts striking them down, leaving states free to do what they want?
The latter. Purcell is a "principle" about limits on the equitable powers of federal courts, and nothing more.
Our system can no longer meet the challenges offered up by anti-democratic actors.
Si, se puede!
The colonies allowed private nominations for public offices & we grandfathered them in, not realizing they'd eventually strangle our elections and defeat representative government.
But public primaries for public offices were mandated in Amendment XXIV (yes, the Poll Tax amendment!). This was ignored for a long time, but not any more. Alaska passed nonpartisan US elections in 2020. Nebraska has nonpartisan state elections. Several states are working on nonpartisan primaries. Not only will this make a difference, it will make it easier to get 100% public campaign funding.
Those are the two root causes.
Some members of the Court owe their seats to McConnell's view of fluid exigency, so 2026 is 2025 when favorable. It has been downhill for our system since Rucho. As noted, no surprise.
Putting politics and ideology aside, it seems to me that this SCOTUS is making a tremendously powerful argument for either (1) amending “for life” appointments to accommodate a generous maximum retirement age; or (2) expanding the size of the Court. It is evident to me that the Court cannot keep up with its workload. The Emergency (Shadow) Docket is becoming a travesty of justice. Their slow pace on these cases itself works patent injustice. It creates a reason to disgracefully disregard the district court system and bog down the wheels of justice in the Supreme Court, where it evidently cannot keep up and makes questionable determinations without full court briefing and consideration. The ensuing delay hurts everyone and everything except the misguided Executive to whom the Court has decided to bow and thereby elevates the Executive from its normal position as an equal branch to a superior one.
How do we shake up the Chief Justice to understand that he will be responsible for radical changes to SCOTUS structuring once the political dynamics change as they surely will? What does it take to have him hear: “Get off your rear and face the mess you have created. Crack a whip and get the work done with full consideration and respectful legal reasoning in writing with signature ownership and due respect for precedent, the record in the cases before you, and the long standing principles of statutory construction. Stop making ‘rules for the ages’ and just decide the cases and controversies in front of you now. Less hubris and more hard work. Even originalists should expect no less.”
Prof. Vladeck, in the past, strongly opposed court expansion because he feared it would delegitimize an institution that is still worth having.
I think court expansion is still a dream (only a small fraction of the Democratic caucus even talks about it), but his opposition has, by now, seems naive.
Term limits and retirement age reforms are all fine and good, but especially since they are not likely to be applied to current occupants, they won't alone solve the problem. Anyway, I think SV needs to firmly address the elephant in the room, though perhaps I missed it.
Nice to hear a voice from favorite borough, the land of my birth and formative years!
Why not apply a maximum age to those who have passed it when the age is legislated? It is 'normal' to grandfather existing non-conforming activities, but it is not required by law. And when it's great-grandfathering, the arguments for it are even weaker.
When the law changed in Canada (in 1927) to put a maximum age of 75 on Supreme Court judges, the oldest judge - then 88 - had to step down. I don't think anyone cared...
It is possible and fine as an opening proposal, but in my view, not likely, that any ultimate change would apply to existing members.
Michael, you're right that "SCOTUS is making a tremendously powerful argument for" why we all should stop saying that SCOTUS justices have appointments “for life.” The most fundamental reason we should stop repeating that falsehood is that it's plainly contrary to our Constitution.
Our Constitution carefully emphasized that no government can appoint anyone to any position "for life." Article I emphasized that neither the federal government nor any state can grant any "Title of Nobility." Article III expressly emphasized that the term of all federal "Judges, both of the supreme and inferior Courts" will be limited to their good behavior: they "shall hold their Offices [only] during good Behaviour."
It's high time that Americans lobby for legislation that will permit removing federal judges for behavior that clearly is not good, i.e., violating their oaths and our Constitution. As Alexander Hamilton emphasized in Federalist No. 79, only federal “judges” who “behave properly, will be secured in their places for life.”
As Article I emphasized, Congress has the power (and the duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by [our] Constitution in the Government of the United States, or in any Department or Officer thereof." That necessarily includes the power of judges on "the one supreme Court" or any "inferior Courts."
Clearly, legislation governing the removal of judges for conduct that is not good behavior is necessary and proper. As Hamilton emphasized in Federalist No. 78, “there can be no room to doubt that” the failure to establish “GOOD BEHAVIOR as the tenure” of “judicial offices” “would have been inexcusably defective.” Absolutely “all judges” appointed to federal courts “are to hold their offices” only “DURING GOOD BEHAVIOR.” “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” It was included in the Constitution to be an “excellent barrier to the encroachments and oppressions of [every] representative [authority, including judges]. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
Professor Vladeck is edging toward a realistic view of the Court - which shoukd be on the far nihilist end of his cynicism vs nihilism spectrum. Thus court is simply corrupt, it was bought a long time ago. The country would,be far far better off with no court than this one. It deserves absolutely no reseprct.
The video and statements by legislators about the duty of all members of our Armed Forces to refuse to obey unconstitutional orders by officers of the executive branch apply with equal force (and for the same reasons) to the duty of all judicial officers (including all judges and all attorneys) to refuse to obey unconstitutional orders by officers of the judicial branch.
Our Constitution (our first and most important words as a nation) started by emphasizing that “We the People” did “ordain and establish [our] Constitution” to “secure the Blessings of Liberty to ourselves.” The People expressly acted as the supreme legislative body in the U.S. to establish “the supreme Law of the Land.” Article VI and the oaths of office of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” emphasized that the foremost and constant duty of every such public servant is “to support [our] Constitution” in all official conduct.
Judges and lawyers (especially lawyers employed by the federal government) cannot presume or pretend to be bound by unconstitutional "orders" merely because they were issued by 5 or so SCOTUS justices. Federal law (5 U.S.C. Section 3331), which our Constitution declares is included in “the supreme Law of the Land,” requires every “individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services” to publicly promise (and publicly acknowledge that his foremost and constant duty is) to “support and defend [our] Constitution” against “all enemies, foreign and domestic” and to “bear true faith and allegiance to” our Constitution (not to any mere politician, party, judge or so-called judicial doctrine).
I agree. The court doesn’t care. This is a completely compromised and corrupt court - its intention is to fundamentally change the governing structure of the country and to make an authoritarian president a permanent feature.
The word “justice” and the names of each member of the gang of 6 should never be used in proximity to one another. Hard to find a more despicable, oath-breaking, treasonous gang.
I wonder what delights the fascists in black robes will offer up before the Holidays.
Mr Vladeck is a precious asset worldwide: one of the very best commentators on the Calvinball matches galore in Washington, DC.
The court has adjusted Purcell to better emulate the McConnell’s rationale for holding open till January 2017 the vacancy left by Justice Scalia’s death in February 2016.
I'm not a lawyer, which can make it hard at times to understand Court rulings and nuances. I reread the majority opinion in Rucho over the weekend. A couple of questions:
1. Under Rucho, could a state politically gerrymander people completely out of being in any district at all? If not, what prevents that?
2. Are there any restrictions on the shape of districts or continuity of districts? As an extreme (and impractical) example, could a state assign people to districts on a house by house basis? Or maybe less extreme, have people in the farthest northwest corner of CA be in same district as people in the farthest southeast corner of the state?
Other (older) cases hold that (1) districts must, when added together, cover the whole state; (2) they must be roughly equal in size; and (3) they must be contiguous, meaning you can walk from one point in the district to any other.
"you can walk from one point in the district to any other"
To be precise (and I'm not even a lawyer :--): "... without leaving the district."
Assuming, that is, one can walk on water, or at least breathe underwater, as bodies of water may completely cleave a district tnto two or more non-contiguous pieces (that is, only contiguous if you count the land under the water).
I didn't know that.
Change "walk without leaving the district" to "walk or swim or row a boat without leaving the district". Or more technically: for any two points in a district, there exists a continuous curve on a map that connects those points and which never leaves the district.
Seriously, though, the combination of geometric criteria (contiguity, compactness) and political criteria (e.g., proportionality) for drawing district maps makes the problem almost hopelessly complex. It's interesting to see how much mathematics lies behind some of lawsuits over redistricting (e.g., see the first link below, which cites (directly or indirectly) the other articles I list).
[1] https://mggg.org/rrc
[2] https://math.uchicago.edu/~shmuel/Network-course-readings/MCMCRev.pdf
[3] https://rdlyons.pages.iu.edu/pdf/est-published.pdf
[4] https://fanchung.ucsd.edu/wp/cheeger.pdf
Any chance that Rucho "overruled" these older cases given the court said that partisan gerrymanders are non-justiciable in the federal courts? For example, a state's partisan gerrymander to ensure its preferred party had all the congressional seats ended up with x number of people being in no district. SCOTUS has "overruled" prior precedents without explicitly stating so (e.g., Lemon test).
As a side note, I find it interesting that if the various relevant "identity groups" (ethnic groups, etc.) were more or less uniformly scattered across a state, the rules for drawing congressional districts would be conflicting. For example, in a state where about 20% of the population is black, following the contiguity and compactness rules would ensure that each district has about a 20% black population, which would violate the rule of proportionality; i.e., that black voters should be a majority in about 20% of the districts to enable proportional representation (according to race, etc.). So the current rules rely on the existence of a fair degree of segregation to achieve fairness, even though segregation is considered undesirable by many people.
In any event, depending on the outcome of the Louisiana case argued in October, it may become unconstitutional to consider race in the context of proportionally representing minorities anyway.
What a contrast Abbott is with the Court’s treatment of “affirmative action” in universities designing their admission policies. (1) In the case of the universities, “diversity” may be a legitimate goal but only if you don’t ever use race. (2) But for states calculating which voters will be included in Congressional districts “gerrymandering“ seems now to be a legitimate goal (!!) and use of race in doing so is O.K. if you can “find” that the “original impetus” (per Alito’s concurrence) prompting the gerrymandering was “partisan advantage”-- which of course will always be the case.
We'll find out if it is more correct to be a nihilist or a cynic about the SCOTU-6 when California's gerrymander comes before the Court. We'll find out if the SCOTUS-6's Constitutional principle is "Party gerymanders are good" or "Republican gerrymanders are good."
In “The Week Ahead” you refer back to your February 6th post on the “unitary executive” (UE) theory. The comments to that post make clear that those opposed to UE theory have not adequately articulated a legally persuasive alternative theory for how these cases should be decided. Your own comments on this seem to suggest that the Court should adopt what might be called a “principle of wisdom” approach, in which the court would allow ad hoc deviations from a strict UE approach when necessary to achieve reasonable policy goals, such as avoiding abrupt changes in policy over multiple administrations (via multi-member fixed-term regulatory commissions) or ensuring that investigations in which the President is an interested party are carried out by independent investigators. But the “principle of wisdom” approach is not very compelling, because it has no grounding in the language of the Constitution, and because one person’s wisdom is another person’s folly. You need to articulate a more compelling alternative theory of the constitutional limits on presidential power. One option would be to argue that the “executive power” is the power to execute the laws jointly enacted by the Congress and the President, and that to the extent that those laws limit the authority of the President to choose his or her own officers, or to direct the actions of certain agencies, they are valid exercises of the Congress’ Article I powers and constrain the President’s Article II powers. That might not be the best approach. But we certainly need to come up with a better theory for what the President’s powers are than this vague “principle of wisdom” approach.
How about Congress makes law and executive and judicial branches have no authority to not follow Congress nor are they allowed to make up law?
The country's most uninformed, yet most powerful policy body has spoken once again. The neither the 15th Amendment nor the Voting Rights Act require that courts give states a "presumption of good faith." A better informed (or less willfully blind) jurist might argue that if states had mostly acted in good faith in facilitating voting, neither the 15th Amendment nor the Voting Rights Act would have been necessary!
Of course they won't actually come out and say it, but the MAGA 6 truly believe that neither have ever been necessary, and since they are the smartest people who have ever lived (much smarter than the authors of these things) they'll abuse their power to reverse both.
Steve, Thanks a million. Discouraging but enlightening. Hang in there. I will too.
Kagan skewers them. But to no avail.