October 9, 2018--Swing Time At the Supreme Court

Adam Liptak, who covers the Supreme Court for the New York Times, in a postmortem after the confirmation of Brett Kavanaugh, wrote that with the departure of Justice Anthony Kennedy, the court is now left without a swing vote. Expect, he says, very conservative decisions, among others, about abortion (severely restrict or end them), affirmative action (sack it), redistricting (what states are doing is OK), and voting rights (not to worry too much about them).

While I'm not so sure Kennedy did all that much swinging, it is true that on subjects such as gay rights he usually voted with the liberal minority. Mainly, though, he joined conservatives on the court in a series of 5-4 decisions about presidential power, corporate reach, and the funding of political campaigns.

There may be, though, another way to think about this. Even with Kavanaugh seated, instead of a predictable suite of conservative 5-4 decisions, we may find a surprising number, sill 5-4s, tipped in a surprisingly liberal direction. 

We could see more moderate and even occasional progressive judgements then anticipated with someone other than Kennedy or, God help us, Kavanaugh agreeing with the four-member liberal wing of the court.

I see the strong possibility that Chief Justice John Roberts may turn out to be an occasional swing vote, especially when issues are of such magnitude that he does not want his court to be perceived as acting too regressively or with too much partisanship.

Case in point, the Affordable Care Act (Obamacare) where Roberts struggled to find a way, a rationale that would work for him and allow him to vote to uphold it. Which he did. (Swingman Kennedy voted with the other three conservative judges and argued vigorously to get Roberts to join them.)

Stretching the language of the actual Obamacare legislation, he saw the individual mandate of the ACA to be funded by a tax and not by either subsides or penalties. And, thus, constitutional. A stretch but revealing--he was so eager to find the ACA upholdable that he became inventive when it came to finding a way to sustain it.

Why might that be? Judicial rationalization trumping ideology and even belief?

Because it's his court. Robert's court. Forever in history, whatever the court does or does not do, finds constitutional or lacking in precedent will be attributable to the Robert's Court.

It wasn't the Scalia Court, nor was it the Thomas Court, or for that matter the Ginsberg Court. It's the Robert's Court as it was the Warren Court, the Burger Court, or the Rehnquist Court.

History-minded, as all chief justices are, Roberts may not want his court to be known ever after as heartless and insensitive to the lives of Americans and our institutions. For him to be perceived that way.

I may be indulging in wishful thinking. But, then again, let's wait and see. Stranger things have happened with the Supreme Court.

June 2, 2015--One Man (sic) One Vote

If there is a case pending before the Supreme Court that has the potential to change life in America as we have come to know it, it is not their soon-to-be-announced ruling on same-sex marriage or even down the line Roe v. Wade.

It is how the Supremes will rule in 2016 on voting. On what used to be called one man one vote which in our current era is referred to as one person one vote.

Here's the issue--

Currently, election districts are drawn so that approximately the same number of residents are included in each one. SCOTUS will decide whether or not in their view this is constitutional or if districts made up of equivalent numbers of voters better satisfie the meaning of one person one vote.

If they decide the latter (and in previous cases that have raised similar questions the court has ruled that everyone needs to be counted, not just voters) this will dramatically shift electoral power away from urban centers and more toward suburban and rural communities.

In other words, districts that include only voters in their count will be much more conservative (read Republican) since cities with large immigrant populations (including undocumented ones who get counted but don't vote) are traditionally more liberal but as a percentage of population have fewer voters than rural or suburban communities.

Such a shift would have major political consequences and could lead to that long-dreamed-of permanent Republican majority. Thus, considering the iron ideological division in the current Supreme Court it is no surprise that the Chief Justice has opted to once again bring it to the court's attention. In his view, clearly, the current constitutionally-defined structure for election districts is not settled law. Just as the Voting Rights Act, which recently they substantially gutted, turned out not to be settled law.

We know right now, before even one brief is filed much less an oral argument offered, that at least seven or eight of the nine justices already have their minds made up. This shouldn't be, but that is how it works these days in the federal courts. Ideology and political orientation rule.  Pun intended.