LYMAN — Two recent Supreme Court rulings – one on including a question on citizenship in the 2020 census, and the other on partisan gerrymandering – make for a curious juxtaposition, especially since the chief justice wrote the majority opinion in both decisions.

In the former, Chief Justice John Roberts had no difficulty in entering the political thicket to denounce an action that was clearly political in nature (leaving immigrants out of the census in order to shift political power among the states) but was cloaked in pure political malarkey (the notion that the question would protect minorities’ voting rights). In the latter, although bare-faced, explicit political explanations were given for the partisan manipulation of legislative district lines, Roberts suddenly found that territory to be a landscape into which the court must not tread. Given this inconsistency, a closer examination of the gerrymandering case in the context of history is worthwhile.

In his gerrymandering opinion, Roberts seemed to indicate that the authority to draw legislative district lines was a singular and unique power the Framers placed in the hands of state legislatures. In reality, it was one of a number of powers delegated to the states, along with determining voting qualifications, awarding Electoral College votes and selecting U.S. senators.

Moreover, Roberts proposed that it was the intent of the Framers in 1787 at the time of writing the Constitution to allow partisan politics to play out in the drawing of legislative districts. This ignores the fact that, at that time, parties were anathema to the Framers. Nonpartisanship was the key element of their ideal of the “disinterested” public servant – not “disinterested” as in “apathetic,” but as in “not beholden to any special or personal interests.” This anti-partisan sentiment is strongly presented in Madison’s Federalist 10 and its criticism of factions and in the Farewell Address of George Washington, which cautioned the country about the dangers of partisanship. The person for whom the partisan manipulation of legislative district lines is named, Elbridge Gerry himself, assumed a party label only after suffering withering criticism from the emerging Jefferson-Madison faction for his role in the XYZ Affair (a dispute between U.S. and French diplomats that led to the limited, undeclared Quasi-War).

If one bases a defense of partisan gerrymandering on original intent, then Baker v. Carr, the 1962 decision that ended malapportionment based on population and established the “one person, one vote” principle, should be overturned. Slavish deference to the state legislatures would herald the return to the good old days, when there was a gross population imbalance between rural and urban legislative districts. Roberts’ genuflection to state legislatures and his dodging an opportunity to right a wrong demonstrate that he is no Earl Warren. In arbitrarily confining the court’s jurisdiction, John Roberts has also proven himself to be no John Marshall.

In his opinion, Roberts did suggest a remedy to the partisan undemocratic fixing of legislative lines: States could adopt an independent commission model for redistricting. Interestingly, just four years ago, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the chief justice voted in opposition to this practice. While it is heartening to know that some states in recent years, through referendums, have chosen this system, the principal drawback is the ability of the state legislature to indefinitely delay putting a popularly supported initiative into law.

It is clear that in the gerrymandering decision, Roberts is basing his reasoning on the theory of originalism manufactured by Justice Antonin Scalia and the Federalist Society. If basic law is immutable, and the Constitution is not a living document subject to interpretation consonant with an evolving society, then shouldn’t all foundational directives on behavior be applied as originally intended? If so, then an originalist interpretation of the Bible would permit stoning, slavery and other conduct that we now, rightfully, consider barbaric.

Quoted by Jill Lepore in her masterful work “These Truths,” Justice William Brennan called originalism “little more than arrogance cloaked as humility.” Originalism is more than inventive revisionism – it is wholesale fraud.


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