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Argument analysis: Literalism vs. the power of the people


The Supreme Court strongly believes that states need wide authority to experiment with the ways they govern themselves, but the Justices found on Monday that this may run afoul of the Constitution, if that document is understood literally.  What seemed like a majority shied away from the idea that the voters of a state could seize power away from their legislature, and lodge that authority elsewhere in government more pleasing to the people.

At issue in the case was the fate of a civic reform, adopted so far in only a few states, of giving a public body independent of partisan jockeying the role of drawing up election districts for choosing a state’s delegation in the U.S. House of Representatives.  If that change shuts out the legislature, more  or less entirely, that could be a constitutional problem, or so it appeared during the argument in Arizona State Legislature v. Arizona Independent Redistricting Commission.

Arizona tried that experiment with a ballot measure, Proposition 106, but the state’s legislature — relying on a literal reading of the Constitution’s Elections Clause — has fought back, seeking to reclaim the redistricting power for itself.   That clause assigns the duty of drawing election maps to “the legislature” of a state, but that is not further defined.

Over and over again, the Arizona legislature’s lawyer in the Court on Monday, Washington attorney Paul D. Clement, insisted that “legislature” in constitutional terms has “a certain meaning”: it can only mean a “representative body” that writes a state’s laws.  So, he argued, it is unconstitutional for the people of a state to hand off congressional redistricting to “an unelected and unaccountable” state commission.  The Founding generation would have been appalled by that, he asserted.

While some members of the Court suggested that the reference to “legislature” might actually mean only “the legislative process,” referring to the capacity to pass laws by whomever a state assigned the task, that was not where most of the Justices’ inclinations seemed to point.   And while some Justices enticed Clement into conceding that a state’s people may act to vary the lawmaking process somewhat, he steadfastly refused to accept that the legislature could be forced entirely to the sideline on the redistricting question.

Two things were notably missing from the hearing, and that was telltale.

First, there were no hearty embraces of the kind of “direct democracy” that can lead a state’s voters to pass laws on their own authority, mostly or entirely independently of their legislature.  A Washington lawyer, Seth P. Waxman, who tried to counter the legislature’s arguments by seeking to keep the focus on the sovereignty of the people, had no one on the bench cheering him on.

When Waxman related the role of the people to the wording of the Elections Clause, he was sharply rebutted by Justice Antonin Scalia, who demanded to be told where, anywhere in the Constitution, those who wrote the document referred to a legislature as anything other than a representative body.

Justice Anthony M. Kennedy told Waxman that the history of the method of electing members of the U.S. Senate — by legislatures rather than by the people (before the passage of the Seventeenth Amendment in 1913, giving that power to the voters) — “works very much against you.”

Second, there was no analysis of why a state’s people might take the redistricting process into their own hands: that is, the reality that most legislators will draw district lines for congressional seats to favor their party’s candidates and to disfavor the other party’s.  In recent years, the Court has been more or less indifferent to the phenomenon of “partisan gerrymandering,” and that seemed evident again.

The argument took the Court deeply into the wording of the Constitution, and the thoughts of the Founding generation more than two centuries ago, but the hearing always returned to the meaning of that single word “legislature.”

The Court showed little interest in arguments made by a Justice Department lawyer, Eric J. Feigin, an assistant to the U.S. Solicitor General, when he contended that the Arizona legislature should not have been allowed even to sue to stop the diversion of its redistricting powers, and when he contended that a federal law passed by Congress to assign those powers left it to the states to choose who could exercise that authority.







Recommended Citation: Lyle Denniston, Argument analysis: Literalism vs. the power of the people, SCOTUSblog (Mar. 2, 2015, 2:39 PM),