SCOTUS Decisions

[omaniphil]

Gerrymandering is clearly justiciable and cannot reasonably be left to the political system, especially since gerrymandering reduces or eliminates the opportunity for the political system to deal with it.

This doesn't line up with reality though. The people of Colorado, Utah, Ohio, and Missouri, each of which have governorships and legislatures dominated by a single party, and thus able to gerrymander at will, have passed referendums that will require a bipartisan approach to redistricting starting in 2020.

[quark]

Gerrymandering is clearly justiciable and cannot reasonably be left to the political system, especially since gerrymandering reduces or eliminates the opportunity for the political system to deal with it.

This doesn't line up with reality though. The people of Colorado, Utah, Ohio, and Missouri, each of which have governorships and legislatures dominated by a single party, and thus able to gerrymander at will, have passed referendums that will require a bipartisan approach to redistricting starting in 2020.

Not all states have referendum processes, some that have them are exploring eliminating them and some are endeavoring to pass laws not exactly consistent with referendum results. https://www.nbcnews.com/politics/politi ... nt-n985156

[JonA]

Some showed Bush would have won and others showed Gore would have won. Even if Bush would have clearly won, cutting off the process in order to install five justices favorite candidates is a problem.

Yes, but the studies based on a continuation of the current recount showed Bush winning and the studies showing Gore winning were basically fantasy scenarios that couldn't happen.

I voted for Gore in that election, I can understand some frustration, but in the absence of Bush v Gore, it would have been the same result, it just would have taken even longer.

Given 20/20 hindsight, it didn't have any effect on the election and it didn't set any precedent. So I don't understand why you feel it equates to some giant IOU written by the SC for future decisions

[quark]

Some showed Bush would have won and others showed Gore would have won. Even if Bush would have clearly won, cutting off the process in order to install five justices favorite candidates is a problem.

Yes, but the studies based on a continuation of the current recount showed Bush winning and the studies showing Gore winning were basically fantasy scenarios that couldn't happen.

I voted for Gore in that election, I can understand some frustration, but in the absence of Bush v Gore, it would have been the same result, it just would have taken even longer.

Given 20/20 hindsight, it didn't have any effect on the election and it didn't set any precedent. So I don't understand why you feel it equates to some giant IOU written by the SC for future decisions

When the Court decided it was not known how a recount would turn out. It had all the appearances of a nakedly partisan decision. The Court itself wrote that the case could not be used as precedent, which should tell you something.

In any event, that case is clearly more consequential than many other cases the Court has decided, which was the context in which I raised it - just looking at the number of 5-4 R-D cases without considering their content or importance doesn't tell you a lot about the partisan nature of the Court.

[DirtyRed]

You don't follow the Supreme Court and the recent dynamics of appointments very closely, do you?

Did you somehow believe Trump campaigning with he would appoint Supreme Court justices to overturn Roe v. Wade meant he would appoint neutral arbiters?

Neutral arbiters would overturn Roe v Wade, you absolute lemon.

I'm disappointed in the gerrymandering decision. It is likely a "very good" judicial decision. Robert's writes a lot of "very good" judicial decisions. But SCOTUS had an opportunity to end the polarization of politics in the US and failed to do it. It's not like SCOTUS hasn't overreached before on lesser issues...

I put "very good" in quotes. I have not read the majority decision.

I haven't read the decisions either, and I probably won't get a chance to until this weekend. I'm not a big fan of the Court's political question doctrine. It is not very rigorously applied, and seems to be more of a fall back when they don't want to address an issue. I have no problem with the court having such a doctrine in general, just the way it is used currently is a little haphazard.

Yeah, the First Rule of (DR's) Logic is that if you can't apply your logic 100% consistently, then it isn't logic. But that's basically what "Law" is anymore, just selectively applying "logic" to the State's benefit.

[DoctorWho]

In a brief order Tuesday, the Fourth Circuit remanded a case about the inclusion of a citizenship question on the 2020 census back to district court in Maryland. The district court case will go forward because of newly discovered evidence about whether the citizenship question was unconstitutionally intended to shift political power to white voters. (On Thursday, the U.S. Supreme Court reached a compromise holding in a parallel case: Although the government has the authority to ask the question, it needs to better explain its decision to do so. The Maryland case should be able to continue after the Supreme Court's ruling.) https://reason.com/volokh

Just a little evidence that the court decides issues before it, and where not appropriate, does not make sweeping political decisions.

[neandrewthal]

Not really. If you look at the statistics, this term there were 18 5-4 decisions. Of those, only 7 broke down into the Republican-appointed/Democratic-appointed partisan split. 10 of the 11 mixed decisions had 1 of the Republicans (typically Gorsuch but Roberts, Kavanaugh, and Thomas all had moments too) swing over to the 'liberal' side. Only 1 of the 5-4 decisions had one of the liberals join the conservatives (Mont v United States).

An argument could very easily be made that the Republican appointed justices are far less partisan than the Democratic appoint justices.

Maybe I'm mathing wrong but if it's a 5-4 majority for Republicans then doesn't that require at least one Republican to defect for EVERY 5-4 decision that isn't perfectly split along party lines, not just 10 of 11?

The only possible split 5-4 scenarios I can think of where it makes any sense to say there is a Rebublican or Democrat side are:

1. One Republican defects to the Democrat side
2. One Republican and one Democrat defect to the opposite side

If any more Republicans defect another Democrat would have to defect to keep it 5-4 and if the democrats are split 2-2 it couldn't be called a partisan issue anymore. And of course if 3 democrats "defected" it would just be scenario 2 in reverse.

Therefore, even if we could make arguments about which side is more partisan based on the raw numbers and ignoring the political implications then wouldn't it be more fair to compare the number of RRRR-RDDDD decisions vs. the number of RRRRRD-DDD decisions (I have no idea what that comparison is, maybe you are still right if we do that)?

[omaniphil]

Not really. If you look at the statistics, this term there were 18 5-4 decisions. Of those, only 7 broke down into the Republican-appointed/Democratic-appointed partisan split. 10 of the 11 mixed decisions had 1 of the Republicans (typically Gorsuch but Roberts, Kavanaugh, and Thomas all had moments too) swing over to the 'liberal' side. Only 1 of the 5-4 decisions had one of the liberals join the conservatives (Mont v United States).

An argument could very easily be made that the Republican appointed justices are far less partisan than the Democratic appoint justices.

Maybe I'm mathing wrong but if it's a 5-4 majority for Republicans then doesn't that require at least one Republican to defect for EVERY 5-4 decision that isn't perfectly split along party lines, not just 10 of 11?

The only possible split 5-4 scenarios I can think of where it makes any sense to say there is a Rebublican or Democrat side are:

1. One Republican defects to the Democrat side
2. One Republican and one Democrat defect to the opposite side

If any more Republicans defect another Democrat would have to defect to keep it 5-4 and if the democrats are split 2-2 it couldn't be called a partisan issue anymore. And of course if 3 democrats "defected" it would just be scenario 2 in reverse.

Therefore, even if we could make arguments about which side is more partisan based on the raw numbers and ignoring the political implications then wouldn't it be more fair to compare the number of RRRR-RDDDD decisions vs. the number of RRRRRD-DDD decisions (I have no idea what that comparison is, maybe you are still right if we do that)?

That's a fair point. I might take a look at that breakdown too

[Allentown]

Gerrymandering is clearly justiciable and cannot reasonably be left to the political system, especially since gerrymandering reduces or eliminates the opportunity for the political system to deal with it.

This doesn't line up with reality though. The people of Colorado, Utah, Ohio, and Missouri, each of which have governorships and legislatures dominated by a single party, and thus able to gerrymander at will, have passed referendums that will require a bipartisan approach to redistricting starting in 2020.

Not all states have referendum processes, some that have them are exploring eliminating them and some are endeavoring to pass laws not exactly consistent with referendum results. https://www.nbcnews.com/politics/politi ... nt-n985156

Beat me to it. MI politicians (largely Republicans) have done all sorts of things to try and mess with the referendum process- changing dates, etc. I believe their current proposal is to require a certain number of signatures from every county/district/along those lines, so that "the people" can't "game the system" and try and change things to what "most people in the state" want, at the expense of the 200 racist hillbillies who live in Mesick.

[aurelius]

How disenfranchised voters are supposed to fix their disenfranchisement is far from clear.

This^ IMO: This is the big swing and a miss by SCOTUS. SCOTUS is there as a check for the political system on behalf of our Republic. It failed to do its job in this case.

Other's have mentioned this. How in the world could they possibly come up with what is a good district or whatever. I particularly love this argument of stupid idealism as a call to do nothing. Well we can't come up with a perfect solution so let's not do anything. Human beings and our process's ALL THE TIME make very complicated, contextual, subjective, and arbitrary judgement calls. And do so fairly well. Would it be messy and not at all clean? Sure. So is the current system.

[aurelius]

This doesn't line up with reality though. The people of Colorado, Utah, Ohio, and Missouri, each of which have governorships and legislatures dominated by a single party, and thus able to gerrymander at will, have passed referendums that will require a bipartisan approach to redistricting starting in 2020.

Because Colorado (and I assume the rest of those States) allow the People to directly pass mandates and make law. Most States do not have that feature. And even when they do (as another poster already mentioned), the legislature fights it.

Regardless, the primary problem with gerrymandering is not partisanship. It is the ability for elected representatives to choose their voters. Not voters choose their representatives. Elected officials hyper-accurately redraw districts using big data to get a decisive advantage of voters in their district (60% or greater). Then they just appeal to their base. They no longer have to court moderate voters. Making the politics more extreme. Districts that are close to a 50/50 split forces elected officials to appeal to independent and moderate voters. Partisanship has always been a part of US politics.
The extreme nature of US politics; from the rhetoric to the proposed policies, is a recent development. That is directly related to gerrymandering.

[Culican]

The extreme nature of US politics; from the rhetoric to the proposed policies, is a recent development.

Pull out a $10 bill. How did Hamilton die?

The Vice President shot him.


“John Marshall has made his decision;

now let him enforce it.”

President Andrew Jackson regarding the Supreme Court decision in Worcester v. Georgia.

U.S. history is full of this type of thing.

[aurelius]

Pull out a $10 bill. How did Hamilton die?

The Vice President shot him.

And? What does that have to do with the modern era of US politics?

Because, in case you were not aware, this is not the 19th Century. And you missed bringing up the Civil War. I'd describe that era as highly contentious and extreme. Talk about opportunity missed if we are just going to grab some ancient history for an absolutely terrible and non-relevant comparison to the modern era.

And I don't even know what you are trying to argue. Hey, it is okay because people a long time ago did some bad stuff so we can do it too! Yea, that lead to a Civil War. Great thinking! Let's just repeat what they did. Let's not try and do better.

[mbasic]

The extreme nature of US politics; from the rhetoric to the proposed policies, is a recent development.

Pull out a $10 bill. How did Hamilton die?
The Vice President shot him.

Important to note they were of the same political party.

IMO there should be more of this these days.
Would solve a lot of problems .... on both sides of the isle.

[aurelius]

Important to note they were of the same political party.

IMO there should be more of this these days.
Would solve a lot of problems .... on both sides of the isle.

I'd love for McConnell and Pelosi to have a duel. Best case scenario: they kill each other. Worst case scenario: one of them dies.

[JonA]

Elected officials hyper-accurately redraw districts using big data to get a decisive advantage of voters in their district (60% or greater). Then they just appeal to their base. They no longer have to court moderate voters. Making the politics more extreme. Districts that are close to a 50/50 split forces elected officials to appeal to independent and moderate voters. Partisanship has always been a part of US politics.

I've always understood gerrymandering to be used to carve up pockets of voters. They aren't looking for a "decisive advantage", because that's just wasted votes. Winning a district 60-40 is worthless. 55-45 is much better if you can give 5% of your supporting votes to another district that needs it, and leech 5% of your opposition into your district as well. That could give you a 10% swing in the neighboring district. A close but reliable margin is better than a blow out.

[aurelius]

I've always understood gerrymandering to be used to carve up pockets of voters. They aren't looking for a "decisive advantage", because that's just wasted votes. Winning a district 60-40 is worthless. 55-45 is much better if you can give 5% of your supporting votes to another district that needs it, and leech 5% of your opposition into your district as well. That could give you a 10% swing in the neighboring district. A close but reliable margin is better than a blow out.

IMO: You are only thinking about it from the 'choosing your voters' angle. You get to choose the other guys voters too.

A party wants to secure super majority in a legislature. 55-45 can be too close a district. A few scandals, a death, the other party candidate adopting your platform (remember when McConnell cozied up to unions and Gore ran pro-gun?) away from losing that super majority. You pack the other guys districts with something like 90-10 and yours with something closer to 60-40. Get about 2/3 of the districts reliably going to your party is the goal.

Another feature of gerrymandering is that while the minority party suffers...EVERY elected official benefits. If you are one of the minority party members that has a 90-10 district in your favor...you aren't really pushing to get this changed. Another reason SCOTUS needed to do something.

[JonA]

Another feature of gerrymandering is that while the minority party suffers...EVERY elected official benefits.

Really? How does the governor of a state benefit?

[aurelius]

Really? How does the governor of a state benefit?

I should have been more specific in my language. EVERY elected official that is elected by the gerrymandered districts.

Gerrymandering does not directly* impact statewide elections. Also, governorship's are generally limited by term limits. One does not become a governor and expect it to be a long career. I cannot think of a modern example of a 'lifelong' governor.

Sure, the party in power would rather have the governorship but it isn't a huge loss if they lose the governorship from time to time. In most States the legislature is far more powerful than the governor and his office. In a lot of states the governor is not even the most powerful elected official. They can limit the governor's powers, obstruct initiatives, and will still control the election process.

*I state directly. The majority party will do shitty stuff like close every voting station except one in a minority district or close the easily accessible voter station for the minority voters in the 60-40 district. And this is really just the tip of the iceberg on all of the really shitty stuff that occurs. These practices can and do impact statewide elected positions.

[quark]

*I state directly. The majority party will do shitty stuff like close every voting station except one in a minority district or close the easily accessible voter station for the minority voters in the 60-40 district. And this is really just the tip of the iceberg on all of the really shitty stuff that occurs. These practices can and do impact statewide elected positions.

There are many other tactics, such as:

Voter purges. Figure out a way to remove people from the election rolls that disproportionately hurts the opposition.

Voter ID laws. They tend to have a disproportionate impact on Democratic voters. The legislators who push voter ID laws essentially never worry about absentee ballot fraud, even though that there's likely more of that. https://www.nbcnews.com/politics/politi ... ts-n976991

Early voting restrictions. Another tactic that seems aimed at reducing disfavored voters.

Think about the possibilities of being in charge of elections and running for governor, for example, the last George governor election.

Consider why Mitch McConnell might want to block laws to improve election security. https://www.usatoday.com/story/opinion/ ... 423838001/