Supreme Court

Final Decisions of SCOTUS Term Produce an Overton Park for the Twenty-First Century

Chief Justice Roberts' irked both Left and Right with his Census decision - encapsulating what we saw the entire SCOTUS term.

|The Volokh Conspiracy |

The Supreme Court closed out its term with a handful of decisions and a punt. In the combined partisan gerrymandering cases, the Court concluded 5-4, along traditional ideological lines, that partisan gerrymandering claims are nonjusticiable and therefore do not belong in Court. The Chief Justice wrote the majority opinion and Justice Elena Kagan dissented. The Court also refused to decide whether large portions of Oklahoma remain tribal land, scheduling Carpenter v. Murphy for rehearing next term.

In Mitchell v. Wisconsin, the Court decided 5-4 – although not on traditional ideological lines – that lack of consciousness provides a sufficient exigency to allow police to draw blood to test whether a driver was inebriated without a warrant. Justice Alito wrote the opinion for the Court, joined by the Chief Justice, Justices Kavanaugh and Breyer in full, and Justice Thomas in part. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and Justice Gorsuch dissented separarely. The Court's line-up in this case is further evidence that Justice Gorsuch is more favorable to criminal defendants than a Justice Garland would have been and, at least where the death penalty is not concerned, perhaps more favorable than Justice Breyer too.

When it came to resolving whether the Trump Administration's decision to add a citizenship question to the Census in Department of Commerce v. New York, the Court issued what may prove to be a highly significant administrative law ruling. While holding that there was no statutory or constitutional bar to including a citizenship question on the Census, the Court also concluded that the Trump Administration's decision was sufficiently pretextual to justify remanding the case back to the district court for further proceedings. As a consequence, if the Trump Administration continues to insist on the inclusion of such a question, the Census may return to the Court this fall. (Another reason the Census could be back is that another case in the lower courts raises issues – such as whether the decision to include a citizenship question violates the Equal Protection Clause – not before the Court here.)

Chief Justice wrote the opinion for the Court, resolving a range of issues with differing degrees of support from the other justices.

First, the  Court held unanimously that at least some of the plaintiffs had standing to raise the relevant claims.

Second, the five conservative justices concluded that including a citizenship question did not violate the Constitution's Enumeration Clause. Concluding otherwise, the Chief Justice explained, would have been tantamount to concluding that virtually every Census ever conducted was of questionable constitutionality. None of the Court's liberals joined this portion of the decision, but Justice Breyer's separate opinion did not contest this conclusion either.

Third, joined by six other justices, Chief Justice Roberts concluded that the Secretary of Commerce's decision to include a citizenship question was subject to judicial review under the Administrative Procedure Act. Only Justice Alito dissented from this holding, on the grounds that this sort of decision is committed to agency discretion. (Justice Gorsuch appears not to have joined this portion of the Chief's opinion nor Justice Alito's dissent.) While the Chief Justice affirmed that the Census Act afforded the Secretary with broad discretion, he also explained that the statute does "not leave his discretion unbounded."

Fourth, the Court held 5-4, along traditional right-left lines, that the Secretary's decision was not arbitrary and capricious or an abuse of discretion as those standards are traditionally understood, nor did the Secretary's decision violate express statutory provisions contained in the Census Act. Under the quite deferential standard traditionally applied, the Chief Justice explained, the agency provided a sufficient explanation to justify its policy choice. In order to conclude otherwise, he explained, requires substituting the judgment of the court for that of the agency, a big no-no in administrative law.

As Chief Justice Roberts explained, it did not matter that many, or even most, might conclude that the risk of an undercount caused by including a citizenship question outweighed concerns about the need to rely upon other information sources and estimation techniques to generate citizenship data; "the choice between reasonable policy alternatives in the face of uncertainty was the Secretary's to make. He considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision. In overriding that reasonable exercise of discretion, the [district] court improperly substituted its judgment for that of the agency."

Fifth, despite the conclusion that the decision satisfied traditional APA review, Chief Justice Roberts, joined by the Court's liberals, concluded that there was sufficient evidence of pretext in the record to remand the decision. This is the most interesting, and potentially most consequential, part of the majority's decision.

While stressing that "in reviewing agency action, a court is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record," and that "a court may not reject an agency's stated reasons for acting simply because the agency might also have had other unstated reasons," Roberts also concluded that special circumstances, specifically an unusually "strong showing of bad faith or improper behavior" could justify consideration of whether an agency's decision was unlawfully pretextual and the examination of materials outside of the administrative record.

While criticizing the district court for being too quick to order extrarecord discovery, the Chief Justice concluded that such an inquiry was ultimately justified and demonstrated that the reasons offered by the Secretary for including the citizenship question were not the actual reasons upon which the decision was based. Wrote Roberts:

It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decisionmaking, but no particular step in the process stands out as inappropriate or defective.

And yet, viewing the evidence as a whole, we share the District Court's conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the VRA. . . .

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary's telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. . . .

It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are "not required to exhibit a naiveté from which ordinary citizens are free." . . .

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. . . .

We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.

On this basis, the Court remanded the case back to the District Court for further proceedings.

Justice Breyer wrote separately to argue that the decision was also arbitrary and capricious, while Justice Thomas wrote separately arguing that there was no basis to second-guess the Secretary's decision, warning that the Court had opened a "Pandora's Box" of more searching judicial review into agency action – perhaps what we should call "harder look review" – than had previously been authorized.

Justice Thomas is undoubtedly correct that the Chief Justice took the unprecedented step of considering claims of pretext to invalidate an otherwise-lawful agency action, yet this was an extraordinary case. It's also not hard to conclude that this case – like many other Trump Administration court losses – was facilitated by the slapdash character of many administration actions. The same impulses that have led the Administration to disparage the need for experience or expertise have also produced unduly vulnerable agency actions.

That said, the Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence—whether or not in the official record—to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion (some of which I quoted above) that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.

Time will tell whether Justice Thomas's warnings prove accurate, and whether Census case "harder look" displaces the "hard look" of Citizens for Overton Park v. Volpe, but given how much fodder the Chief Justice's opinion provides for briefs and petitions challenging agency action, lower courts will have ample opportunity to consider the question. Indeed, it is interesting to think how actions of prior administrations – such as, perhaps, politically motivated Affordable Care Act implementation decisions – would fare under this more rigorous standard.

One last note on today's decisions, with only one 5-4 decision decided today along traditional Right-Left lines with the conservatives in the majority, it remains the case that this term produced more 5-4 decisions in which the Court's four liberals anchored the majority, obtaining a fifth vote from one of the conservatives, than decisions with a five justice conservative majority. It's an interesting factoid, and one few would have predicted. It also suggests that throughout the term—as in the Chief's Census decision—no one got all of what they expected or wanted.

 

[Note: I corrected an error in my initial description of the Mitchell line up. Justice Gorsuch did not join Justice Sotomayor's dissent. He dissented separately.]

Advertisement

NEXT: Supreme Court Gerrymandering Ruling Isn't the End of Democracy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. While some conservatives (and those liberals and independents) who are in favor under-counting certain segments of our population might whine about today’s ruling in “Department of Commerce v. New York,” supporters of gun rights should cheer . . . the increased freedom to look ‘outside the box’ for pretext will help in the future, when a Dem is president and when Congress (or the state version) passes anti-gun-rights legislation.

    Today’s ruling made today a good day for democracy. On all sides.

    1. Yes, the hoplophobes will have to be brutally frank or exceedingly, even unprecedentally, deceitful. Papering over a fundamental enumerated right with common sense platitudes just won’t do.

    2. Yeah, no. Nobody is happy about throwing principles under the bus for outcomes. That’s how you promote political violence. Roberts really dropped the ball on this one.

      1. Nobody is happy about throwing principles under the bus for outcomes.

        Do…you read the comments on this blog?

        1. You’ve admitted often to working backwards from outcomes. So yes awild is wrong.

      2. “Nobody is happy about throwing principles under the bus for outcomes.”

        … unless they get the outcome(s) they wanted.

    3. I disagree.

      The gerrymandering ruling is very much anti-democratic. And the Census ruling still lets Ross invent a more plausible lie, which Roberts almost invited him to do.

      1. I was not at all talking about the gerrymandering case. An awful decision…and as anti-democracy as any case in recent memory.

        1. How so? Do you think we should have proportional representation? That if a party wins 40% of the statewide vote, it should have 40% of the seats?

          1. I actually do think that, but I don’t think it needs to be that exact. Major distortions should not be allowed.

            I think the Court’s job was not, as Roberts went on about, to offer a precise definition of fairness, but to declare extreme results out of bounds.

            And spare me his moans about there no being no well-defined standard. Lots have been proposed, and they are workable. In this case, the census case, and previous gerrymandering cases Roberts displays a ridiculous disdain for anything having to do with numbers or statistics, as though random guesswork was just as good, or bad, as careful standards, or analysis by highly qualified statisticians. Gorsuch is bad about that too.

            It’s incredibly annoying, and disgarceful, that the Chief Justice just won’t consider, or doesn’t understand, this kind of evidence. Remember “sociological gobbledygook?”

            1. If you actually think that, some of the worst gerrymandered states are California and Massachusetts.

              Think about this. In MA, the GOP generally gets around 35% of the vote. They have exactly zero of 9 Congressional districts. Effectively 3 seats have been “gerrymandered” away.

              In CA, likewise, the GOP gets 30-37% of the statewide vote. With 53 congressional districts, they should get 16-29 seats. They currently have…7. Representing on average 10 seats “gerrymandered” away.

              Perhaps you would like the court to come up with a law saying that a party’s vote must correspond with the number of seats? That’s not the court’s job however. That is the job of the legislature.

              1. I’d have no problem with realigning CA and MA.

                But the thing is that these things have been measured mathematically, and those aren’t the offenders.

                The idea that the remedy for monkeying with the electoral process is an electoral one is self-refuting in it’s statement. At some point, voting becomes merely symbolic.

                1. “Measured mathematically”

                  That all depends on the “Mathematical measurements” you’re using. I just presented a simple one that shows that CA and MA are some of the most gerrymandered states. The % statewide vote for a party varies dramatically from their actual representation.

                  Which is, of course, part of the problem. Which mathematical measurement do you use? Which is gerrymandering, and which isn’t? Everyone has biases. And it’s unsurprising to see people of particular political orientations say “we should use this measurement, not that one, and oh look, it favors my party” It’s almost like you would need a law in place to decide on what’s right.

                  And oddly enough, in several states, they’ve chosen to fix gerrymandering….with the political process. Which is how it should be.

                  1. You cherry picked a simplistic one, on purpose I’d wager.

                    Sure, algorithms differ. But they also abstract out of the partisan. Saying you don’t trust anyone to pick an algorithm but you do trust people to pick districts directly is contradictory.

                    Throwing up your hands and saying it’s soo subjective is silly.

                    1. I used a simple one because it was simple and easy to explain. It being used as an example in the actual opinion was a bonus.

                      However, you misunderstand. There are three issues.

                      1. The courts exist to interpret the law. Not make the law. And there is no current law against partisan gerrymanders.

                      2. It is precisely because there is no current law, that there are so many potential options for “fixing” gerrymandering. Because that’s was the legislature and law-writing is designed to do. Nailing down the details. Whether they use percentages, or limit the number of counties crossed, or compactness algorithms. It’s what the law and law writing is meant for. And because the results of such a law have political outcomes, it the job of the politicians.

                      3. Furthermore, injecting the courts into a political dispute, undermines the courts (further), turning them from a relatively non-partisan organization (relatively), into an organization that needs to be fought over even more in order to get political aims through. Especially those political aims that couldn’t get through the ordinary political process. And that’s a problem. Because it undermines the entire system.

                      4. Thus, to keep the entire system of government intact, the courts specifically need to take heed to stay out of cases where they end up actively making, what are in effect, new laws, that the legislature doesn’t.

                    2. We’re a republic, as designed by the Constitution. That comes along with implied safeguards of that system.

                      The Court needn’t specify the fix; that is indeed not their job. But noting the wrong, that is their job.

                      A political dispute that centers on screwing with the machinery of political election is indeed something the court is uniquely made to address.

                    3. I’m this thread sarcastro.fails to realize states are part of that republic and citizens vote for the representatives of the states. What an asinine argument you make.

                    4. Chen and Cottrell have done some excellent work in this area, creating randomly generated maps that comply with all the objective criteria for redistricting, compactness, equal population, respecting geographic boundaries like rivers or major expressways. Thousands of them.

                      Then they take the votes reported from previous elections, and project the winners of elections based on the new district lines.

                      By comparing the median outcome from maps generated completely without any regard to political outcomes,, to the results of the actual map, you can see whether it was plausibly arrived at impartially, or represents a deliberate effort to achieve a particular outcome.

                      Based on this research, both parties gerrymander where they have the opportunity to do so. And the net result of this is pretty much a wash in terms of Congressional partisan balance.

                      The problem for the Democrats isn’t that they’re the victims of gerrymandering. Their problem is that they’re typically distributed in a very inefficient manner, such that they tend to do badly in any mapping that isn’t actively gerrymandered in their favor.

                      And so they’ve been desperately trying to convince the judiciary to mandate gerrymandering in their favor, in the name of ending gerrymandering, by constructing purported tests for ‘gerrymandering’ that don’t take into account where voters are actually located.

                    5. Exactly. Democrats do badly relative to their proportion of population because they concentrate themselves in cities so they can drown in their own liberal group think.

                    6. RWH, I think you’re confusing cause and effect.

                      City life is crowded, everybody is living in everybody else’s back pocket. Your neighbor plays their stereo too loud, you can’t sleep, stuff like that. Consequently, high levels of regulation seem to make sense in cities.

                      So, it’s only natural that the party that wants that sort of regulation would do better.

                      It snowballs from there, with corrupt city machines, and intimidation of dissident, and the Republicans flee or are silenced. And then the Democratic party fine tunes its appeal to the cities, and does ever worse in the less densely populated areas.

                      But it’s really a matter of cities making people Democrats, in the beginning, not Democrats moving to the cities.

                    7. Brett – yes, both sides gerrymander. And maybe it’s been a wash thusfar. (Though as recent cases point out, things have certainly accelerated since that 2016 paper).

                      But that doesn’t mean the Court should wash it’s hands of this monkeying with the instrumentation of our democracy so long as it’s not racial.

                    8. That’s a fair point. And cities often control where you can go (through public transit), what types of things you can do, and it just becomes natural.

                    9. I’m not advocating that they “wash their hands”, but the courts, unlike the legislature, actually need some textual basis for ruling, they’re not a super-legislature entitled to just dictate policy that seems a good idea.

                      And the fact is, the Constitution doesn’t say anything about gerrymandering. Heck, even the requirement that state districts be equal population was pulled out of their ass, you couldn’t find it in the Constitution.

                      Maybe it was good policy, maybe not, but the courts aren’t there to enforce “good” policy, they’re there to enforce “enacted” policy, whether or not it’s good. It’s somebody else’s job to decide what policy is good.

                      Ironically, about the only sort of gerrymandering you could make a good textual argument for being unconstitutional is racial gerrymandering, and THAT is currently being mandated, not prohibited.

                    10. This decision has the Court washing it’s hands, though.

                      Between EPC, Republican Guarantee, and past precedent, there is ample foundation for the Court to at least give allegedly unfair partisan districting a light look to ensure it’s not ridiculous.

                      That’s nothing like being a policymaking body. Not that lower courts are uniformly known for their minimalism, but in the few (well, one) cases I know of where lower courts have directed a districting plan, it’s due to repeated legislative failures to answer their call.

                    11. Brett,

                      Based on this research, both parties gerrymander where they have the opportunity to do so. And the net result of this is pretty much a wash in terms of Congressional partisan balance.

                      Of course both parties gerrymander. But saying it washes out is a poor rationalization. It’s like saying it’s OK for you to hit my brother as long as I get to hit yours.

                    12. It’s not a rationalization, it’s just pointing out that Democrats’ claim that Republicans are somehow uniquely bad about gerrymandering is utter BS. Both parties do it, and it isn’t responsible for the balance of power in Congress.

                      Democrats like to pretend that the natural consequences of their being concentrated in high population density areas are really due to gerrymandering, and demand that they be undone in the name of combating gerrymandering. Even though it requires actual gerrymandering to accomplish that.

                      Actually, the chief effect of gerrymandering is to render incumbents almost immune to challengers, which is horrible enough, but it’s a bipartisan problem.

                      The truth is, we could completely eliminate gerrymandering, and it wouldn’t change the partisan composition of Congress. Now, state legislatures? Yeah, there would be a lot of effect there.

                    13. Brett, I think you’re conflating degree and kind. And also relevance – who cares which side it’s helping, increasingly radical partisan gerrymandering is corrosive to our republic and needs to end.
                      Even if it has no effect as you claim, it’d do wonders for the perception of our democracy.

                      Incumbent-favoring gerrymandering giving way to race and party-favoring gerrymandering is part of the problem we’re grappling with here.

                      I will allow that urban concentration may be related to why Dems are extra sensitive on the issue, but that doesn’t invalidate their concerns about the artificial part.

                  2. I think the “efficiency gap” idea proposed last year was fine. And some of the other methods Kagan mentions in the dissent are OK.

                    I don’t think it makes sense to say, “We don’t know the perfect solution to this problem, so we’ll let it fester.”

                    In fact, you don’t even need a single test. You could have two or three and deem it OK if the redistricting passed one of them. As Sarcastro says, we want the court to set limits, not design the districts.

                    1. See my comment directly above: The efficiency gap isn’t a measure of gerrymandering. It’s a measure of proportional representation. Obviously so; You could construct maps that were literal Escher style salamander tilings, that would have arbitrarily low efficiency gaps. While in most states, achieving a zero efficiency gap is impossible without violating normal map drawing rules like compactness.

                      It just doesn’t measure gerrymandering, AT ALL. What it measures is how close you’ve gotten to replicating the outcome of a system of proportional representation… Which the Court has already ruled is NOT constitutionally mandated.

                      Now, I’m all in favor of proportional representation, if it’s done right. But the Roberts Court is right, the Constitution doesn’t mandate it.

                    2. All right, but there are other tests which allow for things like compactness, etc.

                      I’ve suggested that there could easily be a set of two or three tests such that passing any one of them makes the districting scheme kosher. It’s really disgusting to read Roberts’ lament about not knowing what the perfect system is.

                    3. You can construct honest metrics of gerrymandering. But those weren’t usually what the Court was facing, because they didn’t produce the results Democratic ‘voting rights’ activists wanted.

                      And there’s still that problem that the tests, even the ones that are legitimately tests of gerrymandering, aren’t found anywhere in the text of laws or the Constitution, so what’s the Court’s excuse for using them?

                    4. You can construct honest metrics of gerrymandering. But those weren’t usually what the Court was facing, because they didn’t produce the results Democratic ‘voting rights’ activists wanted.

                      I don’t think that’s remotely accurate. There have been a number of metrics proposed. I don’t see why any particularly favor Democrats unfairly.

              2. Let’s realign everybody, MA and CA included.

                If you want to propose a system that gets the GOP three of the MA seats, fine, as long as it’s used everywhere.

                1. Have congress set the uniform rule. But what you and sarcastro want is to bypass the proper process and use the judiciary because you know nobody gives a fuck what you actually think. If your ideas have merit, congress can set a uniform law requiring automated zoning of districts.

                  1. No, Jesse, I think you have us both wrong.

                    Judiciary sets guardrails, Congress can make policy. States can make policy as well.

                    1. What?

                      Judiciary set “guardrails” in accordance with the laws (including the Constitution and Amendments) written and passed by legislators. The judiciary cannot determine that a law has been violated without their being an actual law.

                      BTW: Neither Congress nor State legislatures make policy, they pass laws. The Executive Branch makes and implements policies based on those laws.

                    2. Where do you think ‘one person, one vote’ came from?

                      Beyond standing precedent, there’s lots of jurisdictional hooks one could use – 14th (EPC, SDP pick your poison) Republican Guarantee, etc.

                      Your understanding of who makes policies is actually a pretty radical one. Congress can’t make policy?!

                    3. there’s lots of jurisdictional hooks one could use – 14th (EPC, SDP pick your poison) Republican Guarantee, etc.

                      “Jurisdictional hooks” is too revealing a euphemism. The coat must be hung up somewhere, so let’s look for a hook to hang it from.

                      The Plain English for “jurisdictional hook” is “pretext.”

                      Which gets to the heart of your decide-the-case-first -think-up-a-justification-second jursprudence. Kagan’s attempts to find a hook to hang her answer from were feeble, which shows – since she’s a clever woman – that there are no real arguments, just pretexts.

            2. I think the Court’s job was not, as Roberts went on about, to offer a precise definition of fairness, but to declare extreme results out of bounds.

              But that is the point. Constitutional law is not based on “extremely unfair is unconstitutional” but “a little unfair is OK.” What you are proposing is simply a subjective standard that would leave it up to the whim of the district judge who is on the case. That is not law, it is chaos wrapped in a mantle of law.

              1. This is a bright line rule, though, Bored.

                It isn’t ‘a little unfair’ it’s ‘we’re not even going to check.’

                1. I was reacting to the prior comment.

                  And the ruling is that the judiciary is not going to check. The citizenry can and should check. The fact that someone here is willing to tolerate somewhat unfair, but not extremely unfair (how about very unfair?) just shows that Roberts was right.

                  IMO, there is a more basic issue. I don’t see any Constitutional right being violated here at all. There is no right to have one’s vote counted with your preferred group of people. By definition, having a district system (which the Constitution mandates) means that some votes are going to be lumped in with others and going to end up voting for the loser.

                  1. The citizenry’s ability to check and hold politicians accountable on the thing that’s keeping politicians unaccountable is an impractical solution to the problem.

                    So you want to overrule one person one vote. That has a great history. Much equal protection.

                    Formalist sufficiency is bad – it ends up in court packing – formally okay, functionally not so much.

                    1. I’m really tired of people referring to one man one vote as though it’s some great American principle. No. The founders did not agree with it, and most Americans did not agree with it. And many more still don’t. It’s a creation of the Supreme Court, and didn’t come until the 1960s.

                    2. You’ve admitted previously you dont think states should have any power, that only the federal government should exist. States do hold votes for legislative offices. You seem to ignore.this fact. Those votes lead to the federal votes as prescribed by the constitution. Dont like it? Use the powers existing to change it

                    3. You’ve admitted previously you dont think states should have any power, that only the federal government should exist

                      Stop making up crazy things, Jesse.

                    4. “So you want to overrule one person one vote.”

                      Don’t know where you got that. One man one vote (which, more accurately, is that representation in Congress or a legislature should be proportionate to the population) is very different than what we are talking about in this case. If my district has 1 million people, while the next district has only 1/2 million, then the other district has numerically stronger influence in the legistlature — they effectively are getting double the representation.

                      The issue here is that, if you have a district system as the Constitution mandates, that means some people are going to be voting for the loser in each district. The fact that they would prefer to be in a different district where they could vote for the winner (or, if they are more sophisticated, where they could swing an election) is not a Constitutional right.

                      You have the same thing at the Presidential level. I live in a very blue state, so my vote is “wasted.” I would prefer it if I lived in a swing state so as to make a difference in the election. Are my rights being violated?

                    5. B.L.,

                      I don’t think the Constitution actually mandates a district system, but that’s a minor point, since we are pretty well stuck with it.

                      As to your blue state issue, it’s clear your Constitutional rights are not being violated, though I do think your ability to influence the selection of the President is unfairly restricted – largely eliminated in fact. Blame the Electoral College, a truly stupid system.

                      As for Congress, yes some votes are inevitably “wasted” as you say. One notion for dealing with gerrymandering is to say that once the number reaches a certain limit the districting is not allowed.

                      Again, the point is to outlaw egregious cases, and to do so in an objective way. You don’t have to be perfect.

                    6. There is no “one person, one vote” in the Constitution. The closest you can get is “one citizen, one vote” with the emphasis being on US citizens are the only ones allowed to vote in federal elections.

                      I am curious why you support foreign nationals (aka aliens,) legal and/or illegal, being allowed to vote in US elections? Is that not supporting foreign interference in our elections? Does that not violate the Constitution?

                    7. Who is supporting letting foreign nationals vote in our elections? Not me.

                      The main individual who looks for support from foreigners is Donald Trump.

                    8. Some very smart folks disagree with you, FlameCCT:

                      https://en.wikipedia.org/wiki/Reynolds_v._Sims

                      Who is arguing that illegal aliens should vote?

                      I don’t know about noncitizens being given voting rights (else what does citizenship mean?), but as they are governed under our laws, it’s not crazy to say they get a say in how they are governed. Jurisdictions in America have done so in the past, and did not sink into Hell.

                    9. Pointing to a liberal court decision as “proof” that something is in the Constitution is retarded. Almost as retarded as claiming that killing babies and shooting off inside another dude in the Constitution.

                2. We know you hate the constitution sarcastro, but there are two ways to currently get your wishes. An amendment or habeas Congress create a uniform election law.

                  1. I hate your weird twisted partisan view of the Constitution, Jesse.

                    1. Your view of the Constitution, sarcastr0, is “Anything I dislike is unconstitutional,” and anything I love, like killing fetuses and gay anal sex, is constitutionally mandated.

              2. B.L.,

                No. I think it’s perfectly possible to set an objective mathematical rule that defines what is “extremely unfair.” No subjectivity to it.

                1. Well weve always known you were bad at logic.

                2. Now, now, bernard; we all know there are lies, damned lies, and statistics (aka mathematics).

                  1. Sorry, Flame, but this is jut more screaming in fright at the sight of numbers, like Roberts.

              3. Not subjective, B.L. A well-defined rule. Exactly the opposite of “subjective.”

                Judges can’t overrule arithmetic.

          2. The problem with gerrymandering is that it lets the party in power preserve its own power.

            The solution is that instead of letting the party in the majority redraw the districts, let the party in the minority redraw the districts.

            1. I know right? When all those democratic state legislatures gerrymandered in the 80s and 90s it made it so the gop could never win a state legislature again. You’re soooooooo right.

            2. So much for representative government.

              If the government hadn’t grown its own power so vastly over the last century, fights over who gets to wield it wouldn’t seem so dire.

            3. So, we alternate between two rigged systems? Nah.

              Here’s my proposal: Use Chen and Cottrell’s system, (Mentioned above.) to generate 10,000 or so maps, randomly, but all of them complying with standard rules of redistricting: Compactness, equal population, respecting geographic features. Completely ignoring any political concerns at this point.

              Let one party throw out 4,000 of them. Let the other party throw out another 4,0000. (If you’ve got three parties, each gets to throw out 2,600 or so.) Then pick one of the remaining maps at random.

              Nobody gets confronted with a map that’s especially unfair to them, because they got to remove any outliers that hurt them. And nobody gets to rig the outcome, because the final choice is purely random.

              Yes, this would be hard on incumbents, every 10 years you’d have a new set of districts. That’s intentional, most gerrymandering is actually a non-partisan effort to entrench incumbents.

              1. I like this idea very much.

                1. Concur – this would be a good solution.

                  1. It’s not so hard to find a reasonable proposal. Getting it enacted is the hard part, because most gerrymandering does benefit incumbents, who occupy veto points in the system, and because most ‘voting rights’ activists are partisan hacks who got into it to give their own party an edge, not make the system fair.

                    I really think it’s only going to be fixed by ballot initiative, but most states don’t have that option.

                    1. Certainly state by state adoption of a specific solution has a popular pressure to it.
                      And if it gets nakedly partisan enough, that creates a counter pressure itself.

                      But at the same time, this has the effect of removing politicians from accountability to popular pressure. If it gets off the rails enough there’s no stopping it via the ballot box.

                      Hence why I still think this rises to the level of at least judicially cognizable.

                    2. The difficulty is, there’s a difference between the judiciary deciding, “Yes, there’s a problem here.”, and their deciding, “Yes, there’s a problem here we’re tasked with solving.

                      As keeps being said, the judiciary aren’t a super-legislature. Their job is enforcing enacted rules, not just generally solving problems. If they can’t point to an enacted rule that’s being broken, it’s outside their jurisdiction even if it IS a real problem.

                      There’s no substitute here for doing the heavy political lifting, and creating a genuine popular movement demanding an end to gerrymandering.

                      We might have had such a movement already, if the left hadn’t effectively captured the ‘voting rights’ movement, relentlessly purging anybody who had concerns, (Like policing voting rolls, or securing elections against various sorts of fraud.) that the left didn’t see as advancing their causes. Even where reasonable compromises have been arrived at, like HAVA, (Easier registration AND purging voter rolls.) only one side of the compromise got enforced. The result is that the right came to see ‘voting rights’ as just a partisan scam, and with some cause.

                      I don’t think this problem gets fixed until there’s a genuine bipartisan movement to fix it, and I don’t see that happening until the left stops seeing voting rights as just another tool to advance its causes.

                    3. As discussed elsewhere in the thread, there are lots of jurisdictional hooks there.

                      As to your carping about how voting rights has become liberal, that’s mistaking cause for effect. One party has been working to reduce the franchise since the 1990s – don’t pretend there’s a huge constituency among the GOP to get more and fairer votes.

                    4. We might have had such a movement already, if the left hadn’t effectively captured the ‘voting rights’ movement, relentlessly purging anybody who had concerns, (Like policing voting rolls, or securing elections against various sorts of fraud.) that the left didn’t see as advancing their causes.

                      Brett,

                      The trouble is that, as sarcastro says, the left is reacting to blatant GOP efforts at voter suppression. You can deny it all you want. It’s true. It’s no coincidence that they started a lot of this right after the absurd Shelby County decision.

                    5. If you really think that the GOP’s efforts are nothing more than “blatant [] efforts at voter suppression” then you are as blinded by partisanship as you are accusing your opposition of being. To be blunt, you are holding the entirety of your opposition accountable for the most extreme outliers within that opposition while demanding that you be held accountable only for the things said by the reasonable factions within your own group.

              2. Are we excluding racial (and any, really) demographics from the equation? If so I’m all for it.

                Still though, I’d like to see something less focused on “what parties currently control government” to figure out who gets to use preemptive strikes, if practical. Let every person vote to strike some number of maps, throw out the 60% that get the most votes, choose randomly among the rest? Calculate the greatest departure from some norm and eliminate those automatically?

              3. Nah, I have a better idea. Real simple.

                On the ballots, strip the political party identifier from the candidates. All of em. And watch what happens… 😉

                Maybe give them a short, 5 line area that allows them to describe their past accomplishments for their future constituents. No political party descriptions allowed.

                1. It’s true that voting did go wrong in this country when we started getting pre-printed ballots. Picking who got their name printed, and who didn’t, became an effective way to rig elections, and continues to be so to this day. (In several states, write in votes are even illegal!)

                2. No party identifier is already the rule in my state (and I believe in most states) for judicial elections. As far as I can tell, it does not help.

          3. I’m okay with that, provided that voting is limited to non-criminal taxpayers whose families have been here for at least 3 generations.

          4. Do you think we should have proportional representation?

            Let me point out, A.L., that the dissent does not argue that proportional representation is required. I was just expressing my opinion that it wold be desirable.

            Some of the approaches Kagan listed had plenty of room for taking into account geography, compactness, and other things sometimes considered in designing districts.

            1. And yet, the lawsuits typically come down to “party x got y% of the vote, but they got y+20% of the seats and that isn’t right”. I.E. some version of proportional representation.

              You don’t see any lawsuits against, say Illinois 4th Congressional District (AKA the earmuffs district). It’s clearly a racial gerrymander, which is almost entirely dictated by race. Indeed, it was court ordered, apparently. But it’s also a political “packing” gerrymander, which violates every compactness rule.

              1. There is a difference between demanding proportional representation and objecting to the kind of extreme results, deliberately manufactured for partisan purposes, that we see in, say, NC.

                Kagan’s dissent mentions a number of approaches that do not require proportional representation, but are not gerrymanders. They take into account things like compactness, the state’s natural geography, etc.

                So proportional representation can be a sort of baseline. It’s easy enough to establish metrics that permit reasonable deviation. I mean, the House is supposed to represent the people, right? Not the views of the (also gerrymandered) state legislature.

      2. Certainly the gerrymandering ruling is undemocratic, but the Constitution does not establish a democracy. In addition, there are remedies for partisan gerrymandering should the people demand them. For example, Article I, Section 4 of the US Constitution gives Congress the power to change, by law, the times, places, and manner of electing Representatives. It would seem, therefore, that reforms could, at least in theory, be put in place. Here in Washington State, legislative district lines are drawn by a commission that includes an equal number of commissioners from both major parties (tough luck Libertarians and other minor political parties). But don’t fool yourself that this process eliminates partisan horse trading, especially to protect the seats of incumbents in both parties. But at least the horse trading is transparent to those willing to pay attention.

        1. Certainly the gerrymandering ruling is undemocratic, but the Constitution does not establish a democracy.

          Thank you very much. Well put, the problem of “unfairness” is inherent in a representative system that the Constitution mandates.

        2. the Constitution does not establish a democracy.

          I am seriously tired of this “argument.” It proves nothing, establishes nothing, and is mostly used to defend the indefensible. It’s some sort of semantics that appeals to sophomoric minds.

          1. Sophomoric like denying the reality if our current system?

          2. Surely the argument proves that complaining that this or that judgement is anti-democratic is irrelevant to the legal question of whether the judgement accords with the constitution. Which would seem to be front and center when we are discussing SCOTUS rulings.

            1. as it happens, I think partisan gerrymandering is a bad thing
            2. and that Congress has the constitutional power to do something about it, if it chooses
            3. and moreover the half of Congress whose membership is potentially affected by pg is currently controlled by the party which is currently more pg-ed against than pg-ing
            4. and what’s more I have my own top quality anti pg-ing scheme, available to the highest bidder on request.

            But for the purposes of today’s ruling, the important thing is that there was no serious legal argument against it. Kagan, who is plainly the cleverest and most articulate of the liberal Justices came up with nothing remotely serious by way of a constituional argument. Her 14th and 1st (!) amendment arguments were feeble.

            So it’s a good thing that the 5 arguing legally overcame the 4 arguing policy concerns, in court.

            As to policy though, Congress can contact me on this number if it would like the solution to pg-ing representation in the House.

            1. the half of Congress whose membership is potentially affected by pg is currently controlled by the party which is currently more pg-ed against than pg-ing

              How is that supposed to help?

              1. It helps demolish the objection to the current arrangements, that pg-ers can use pg to entrench themselves beyond the reach of the political solution to pg – legislation in Congress. Whatever is preventing Congress from acting, it is not pg entrenchment.

                1. Actually, you could say it’s the Constitution’s gerrymandering of the Senate and the EC.

                  And the House is gerrymandered in the sense that Democrats are under-represented.

            2. Lee,

              The point is that “the Constitution does not establish a democracy” doesn’t mean anything. It’s empty bloviation.

              The Constitution sets up a representative form of government, with representatives democratically elected. The term “democracy” does not exclude that kind of structure. If it did there would be no democracies.

              You can say, “it’s not a democracy,” because it’s not a direct democracy, all you want, but it’s a pointless claim.

              1. The Constitution sets up a representative form of government, with representatives democratically elected.

                If you mean by “democratically elected” merely “elected by the people in elections” then sure; but if so complaints that pg is anti-democratic are meritless, since elections by the people in pg-ed districts are still democratic by the “elected by the people in elections” standard.

                In truth, the Constitution and the electoral laws made pursuant to it, establish a complicated mash of democratic (under the stricter standard of “majority rule”) and not so democratic structures. The demos that does the electing is State by State (or district by district) not National, and the Senate and Electoral College contain enough deliberately anti-democratic features to enrage the lefties.

                So the complaints by lefties about the bits of the electoral system that they don’t like – Electoral College, equal representation for each State in the Senate, pg in the House (or even absent pg, non proportional results) – have nothing to do with the directness or indirectness of the democracy, and all to do with the fact that the current system produces elected officials not in proportion to votes.

                1. and all to do with the fact that the current system produces elected officials not in proportion to votes.

                  And in most cases, though perhaps not all, the true objection is not even that. Most lefty objectors would be quite happy with non proportional results if such results favored their side. Their real commitment is to a win for their side, and their real objection is to defeat. Proportionality is merely tactical.

                  1. ‘I’ll be the other side is arguing in bad faith, which allows my side to do so as well.’

                    Weak bootstrapping partisanship to rationalize more partisanship.

            3. Lee,

              I think both arguments, especially the First Amendment one, have merit. Roberts’ dismissal of that demonstrates that he didn’t really understand the point.

              Even leaving aside the outcome, his decision was a pretty bad piece of work.

              1. The 1A argument is woeful. Indeed it’s beyond woeful, it fully qualifies for the mot du jour “pretextual.” It is a merely a convenient peg on which to hang the desperately desired result that pg is unlawful.

                But 1A has nothing whatever to do with electoral rules. 1A has to do with government restrictions on religion, speech, assembly and petition. It does not insist that people who would like to religify, speak, assemble or petition should be reserved slots in Congress better to do their religifying etc. The freedom of speech of children is not to any extent restricted by the fact that they have no votes. Ditto the freedom of speech of supporters of minority parties and independents who cannot scrabble together enough votes to win. Nothing prevents them talking their backsides off to try to persuade their fellow voters to support their favored candidate.

                1A just a pretext, seized because nothing else in the Constituion seems to meet the case. Or rather, the bit of the Constitution that explicity empowers Congress to deal with these matters – Article 1 Section 4 – is inconvenient, as the plaintiffs currently control only the House.

                1. Lee,

                  This is a court that digs deep to find 1A violations when it suits them.

                  Corporate management wants to give shareholder money to PAC’s? Can’t stop it. Violates the 1A.

                  Nuns have to fill out a form to get an exemption? No way. 1A violation.

                  Arizona wants to provide public funding to equalize campaign expenditures? No way. 1A violation.

                  But. NC wants take away voters’ right to Congressional representation because they are Democrats? Sure. No problem.

                  Look, Lee. The court has become a right-wing stronghold that no longer has a heck of a lot to do with “calling balls and strikes.”

                  1. The court has become a right-wing stronghold that no longer has a heck of a lot to do with “calling balls and strikes*.”

                    🙂

                    On the same day the court declined to intervene on partisan gerrymandering (1-0 to the right) it decided the census case against the (right wing) Commerce Secretary. As right wing strongholds go, the fortifications look pretty shaky. Nor, of course, is the census case the only one that the liberals have won since Kavanaugh was seated.

                    It’s also worth noting that your horror at the effects of the right wing lock is provoked by the court continuing its two century long inaction on this matter. In other words your idea of right wing judicial extremism is not imposing new and terrifying right wing policies by judicial fiat, but merely declining to adopt novel interpretations recently beloved by liberal pols and academics. As the march of right wing oppression goes, leaving things exactly as they are is hardly the stuff of jackboots. You need to adjust your dials.

                    As to your litany of allegedly doubtful recent 1A precedents, they are all about forbidding (Citizens United), compelling (nuns) or punishing (Arizona) speech.

                    Partisan gerrymandering has nothing to do with speech at all, it has to do with who gets elected. Partisan gerrymandering does not forbid, compel, punish, chill, inhibit or otherwise interfere with anyone’s ability to babble away to their heart’s content, and pocket’s depth, on anythng at all, including recommendations on who to vote for or against.

                    Of course should pg result in a legislative body that then does enact laws that actually do infringe 1A rights, then that would be the moment for the courts to step in.

                    * I agree though that Roberts disgraced himself again, as with Obamacare, with his absurd notion that you can underline the court’s political impartiality by deciding cases on the nakedly political basis of trying not to upset left wing media organs too much. If you give the right a win, you need to balance that by giving the left one too. Calling balls and strikes is a great idea. Unfortunately Roberts believes in trying to please the crowd instead.

      3. “The gerrymandering ruling is very much anti-democratic. ”

        Having appointed judges decided redistricting instead of elected legislators and governors is “anti-democratic”?

        Must be nice living in leftylogicland.

        1. For the umpteenth time, What is being asked for is limits, not actual redistricting by judges.

          1. Judges regularly impose their own maps.

          2. But without boundaries set on what limits can be applied, it inevitably devolves into “keep creating maps until you make one I like” – which is fundamentally indistinguishable from “I’ll make the map myself”.

            Should there be limits? Absolutely. But it is not the Court’s place to invent those limits. There is simply no Constitutional justification for any particular rule.

    4. This ruling applies to regulations, not legislation.

    5. Pfft. You don’t need to look “outside the box” when the Constitution says the right to keep and bear arms “shall not be infringed.”

      That’s the difference. In their quest to dismantle the Constitution, the left needs to do a lot looking “outside the box” (aka outside of the law). The right needs exactly the opposite.

      “under-counting certain segments of our population”

      There’s no connection between census answers and immigration enforcement, so there’s no need to assume any under-counting due to a basic, simple and very justified and appropriate question on a long survey that asks all sorts of asinine stuff.

      1. Your gun absolutism seems destined to fail, for several reasons. Guns nuts will continue to lose ground in public opinion as the American electorate continues to change (less rural, less religious, less intolerant, less white). Speech is protected by similar constitutional standard, yet child pornography is banned, defamation claims allowed, falsehoods in securities marketing prohibited. Most people recognize that all rights are bounded by reason.

        Keep trying, clingers. You might even be able to delay the inevitable (universal health care, immigration reform, gun safety laws) for a few years.

        1. I don’t think so. I know a lot of quite liberal-left folks who see clearly the fundamental importance of the right of self-defense and of not granting the government and the 1% a monopoly on the use of force vis a vis the People.

          Of course, no matter what happens, it’s always possible that sooner or later times of great trouble and upheaval may revisit us, people will no longer have the option of remaining fat happy and oblivious, self-defense will become a common necessity and nobody will give it a second thought.

          1. I perceive an important right of self-defense. I believe the Constitution (although not necessarily the Second Amendment, consequent to the gymnastics required; Prof. Amar states the argument deftly) entitles an American to possess a reasonable firearm for self-defense in the home.

            I believe laws interfering with that self-defense right are misguided and improper; I hope backlash against gun absolutism does not overrun that right.

            1. The most important part is self defense against government despots, a hedge against tyranny.

            2. Rev, Arthur….You said, “I believe the Constitution entitles an American to possess a reasonable firearm for self-defense in the home.”

              I am actually rather surprised by that comment. I won’t get into what is a ‘reasonable’ firearm. But I do have a question for you. Does that individual have the right to carry their firearm outside the confines of their home and their property?

              1. I have expressed this position repeatedly. At the general level, an American law forbidding possession of a reasonable weapon in the home for self-defense would be unconstitutional, in my judgment.

                Entitlement to carry a loaded firearm in the normal course of life beyond home and property is not, in my judgment, protected by the United States Constitution.

      2. There’s no connection between census answers and immigration enforcement,

        Oh right. And everyone is just supposed to believe that? Under this Adminstration? I don’t. And I sure don’t think it’s unreasonable for illegal immigrants not to believe it either.

        1. Illegal immigrants shouldn’t be here. They should be scared.

        2. Another racist in bernard who thinks all nom citizens are here illegally.

        3. I’m as entitled to believe the census answers won’t be handed over to the ICE, as you are to believe the IRS wasn’t intentionally targeting conservatives. Both are legally prohibited, after all.

          But I’m not concerned about undercounting illegal immigrants, because we can correct any undercount of them by deporting the necessary number to make the count accurate.

          And the idea that anybody else is afraid to answer this question is a joke, intended to obscure that this is entirely about illegal immigrants, and keeping the citizenry ignorant of how many are in the country.

          1. No, Brett. It’s not about that, since answering that you are not a citizen is not confessing to being here illegally.

            In fact, the question, as those who understand this stuff have uniformly said, will not produce an accurate count of the population or of citizens.

            What this is about is a continuation of GOP attempts to entrench themselves in power, regardless of what the voters think about it.

            1. “No, Brett. It’s not about that, since answering that you are not a citizen is not confessing to being here illegally.”

              That’s true, but only illegal immigrants have any reason at all to be afraid of revealing that they’re not citizens, because legal resident aliens are legally required to tell the government where they live: They actually become deportable if they don’t!

              As I said, I’m not concerned about under counting illegal aliens, because we can always deport enough of them to make the under count accurate.

              1. So much for formalism in this case, it seems.

                Sure, it’s fine for pretextual advise & consent, or for bogus emergency declarations. But when it comes to counting every person? Ehhh, lets not push it overmuch.

      3. “Pfft. You don’t need to look “outside the box” when the Constitution says the right to keep and bear arms “shall not be infringed.””

        Other parts of the Constitution describe the processes by which rights may be infringed. Did you not learn about ANY of them in school or in practice?

        1. Yes, and other parts of the Constitution are not treated to a simple “We can infringe upon a right when a government thinks it’s a good idea.”

    6. Just a few weeks ago judges rules they couldnt look at the animus of congress into requesting trumps tax returns and had to assume congress had good intentions. But this ruling involved trump… you see how people view this as hypocritical?

    7. I’m not concerned with undercounting illegal aliens, (And that’s the segment of the population we’re talking about here, despite strenuous efforts to rationalize than anybody else would be concerned about answering that question.) because illegal aliens aren’t supposed to be a segment of the population to begin with.

      Any under count can be compensated by deporting the necessary number of them, since every last one of them, without exception, is legally supposed to be deported.

      1. But we’re not going to deport them en masse, Brett.

        Nor should we, despite your callous and utterly inhumane attitude.

        Besides, ICE’s einsatzgruppen aren’t big enough.

        1. Maybe we will. And we absolutely should. I would be totally behind mass deportation of every last person here illegally.

          Despite the desire of Democrats to keep them here to artificially inflate their political power.

        2. “einsatzgruppen”

          An appalling and offensive comparison. You apparently know nothing about einsatzgruppens.

          ICE isn’t even the right agency, dummkopf.

      2. “Any under count can be compensated by deporting the necessary number of them, since every last one of them, without exception, is legally supposed to be deported.”

        Legally supposed to be deported at a rate of not more than about 400,000 or so per year until we run out. Also, less the ones that actually have some aspect of American law that says they can stay. How many is that? Heck if I know. We won’t know until after they’ve all had their hearings.

    8. Right, because gun control measures require pretext…

  2. Second, the five conservative justices concluded that including a citizenship question did not violate the Constitution’s Enumeration Clause. Concluding otherwise, the Chief Justice explained, would have been tantamount to concluding that virtually every Census ever conducted was of questionable constitutionality.

    “Explained?” Declared, without a good reason. And who says they were Constitutional anyway?

    The Census stopped asking the question after 1950. That was also the last census that didn’t use mail-in forms but relied on enumerators. That’s going to have an effect on the response rate. In addition we did not have nearly as many immigrants then as now, not to mention a fiercely anti-immigrant Administration in place, so perhaps the danger of an undercount was much less.

    Roberts really goes out of his way to justify this nonsense.

    1. We had plenty of immigrants before 1950. Also, it’s a recommended practice by the United Nations (asking about citizenship).

      1. The immigrant population has quadrupled since 1960.

        See here.

        There were a record 44.4 million immigrants living in the U.S. in 2017, making up 13.6% of the nation’s population. This represents a more than fourfold increase since 1960, when only 9.7 million immigrants lived in the U.S., accounting for just 5.4% of the total U.S. population.

        Also, you didn’t address the point about enumerators. I suspect, but don’t know, that the proportion of illegals is higher today than then as well.

        1. And? 1950 was a low point.

          From 1860 to 1930, the US foreign born population averaged above 13%, every decade.

          1. Oh, and we had citizenship questions during those decades. At least some of them.

            1. We also asked about citizenship on the long form in every census after 1950, except for 2010, which would put the constitutionality of those in question as well. Once again demonstrating that John Roberts has a much greater understanding of the facts than bernard11.

              1. You think bernard was talking about the long form? Do you think anyone is talking about the long form?

                1. I think John Roberts was talking about the long form, because John Roberts makes it pretty damn clear that he was talking about the long form between 1960 and 2000, which makes bernard11’s comment pretty damn stupid. I’m not surprised that you jumped in on the stupid side of things.

                  1. The long form was replaced by the ACS, not by an expanded version of the short form. Nor was it used to apportion Congress, so it has little relevance to the current debate, a fact Roberts appears to have conveniently overlooked.

                    Oh, and STFU.

                    1. He didn’t overlook anything, you fucking moron. And you’re wrong about the long form not being used. “Between 1970 and 2000, the U.S. Census Bureau used two questionnaires. Most households received a short-form questionnaire asking a minimum number of questions. A sample of households received a long-form questionnaire that included additional questions about the household.”
                      https://www.census.gov/history/www/through_the_decades/questionnaires/

                      You think they just ignored the results from the households that only received the long form?

                    2. Did you read what I said? I guess not, since you’re obviously an idiot.

                      I didn’t say it wasn’t used for anything. I said it wasn’t used to apportion the House.

                      Now go away and let the grownups talk.

                    3. No, I read what you said, every ignorant post in this thread. You really think they ignored the results from the 16% to 20% of households that only received the long form when they apportioned the House?

                    4. OK jph, you got me.

                      Still, some facts remain.

                      The question is unnecessary, because the data is available elsewhere.

                      The question will not produce accurate results, making it useless.

                      The question will distort other results of the census, making in fact worse than unnecessary and useless.

                      That something was done in the past doesn’t make it a good idea to continue doing it.

                      Everyone knows this. Some people don’t want to admit it, because, “experts can be wrong…yada, yada.” BS. There was no evidence presented by anyone to refute the Census Bureau’s analyses. The government couldn’t find a single knowledgeable expert to question their approach. But oh, gee, “who knows?” say Roberts and the rest.

                      Look. Four of the conservative Justices are shameless partisans. Roberts has some sense of shame, though we’ll see what he comes up with if the case comes back.

                  2. Attempts at pedantry is not going to save you here, jph. You’re just wrong about the long form.

                    1. Cute how you didn’t point out where he was wrong. Par for the course for you.

                    2. You think Roberts was talking about the long form, Jesse?

          2. And for most of that period there was hardly such a thing as an illegal immigrant.

            1. Well that’s an idiotic assertion.

              1. It would be more helpful if you pointed out how he was wrong, rather than that the assertion was idiotic.

                Something along the lines of “for most of US history various groups have had their migration prohibited, most explicitly by the Chinese Exclusion Act of 1882, which remained in some form until 1965”

                It is an idiotic statement, but many people aren’t aware of how poorly the US has treated some groups in immigration over the years.

                1. Robert,

                  The Chinese Exclusion Act was effective. If an immigration restriction works you don’t have illegal immigrants.

                  I didn’t say there weren’t restrictions, though there weren’t many until the 1920’s. I said they weren’t much evaded.

      2. Why was it dropped? Was it a pretext for something else?

    2. The 14th amendment actually requires knowing how many citizens are in each state to calculate the penalty for disenfranchising voters:

      “[T]he basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

      Congress certainly thought asking about citizenship status was reasonable when they crafted the 14th amendment.

      There is no argument that asking about citizenship is constitutionally suspect, but there are a very good grounds for arguing it’s constitutionally required.

      1. Asking any question the left doesn’t want answered is constitutionally suspect, didn’t you know?

        1. Even if it’s constitutional, Brett, Ross pretty clearly violated the APA and the Census Act, Roberts’ evasions notwithstanding.

          1. Yeah, I agree with the APA part of that, anyway. Not the Census act.

            And it was really stupid of him, because a non-pretextual justification, like, “ICE would like to know in general terms where illegal immigrants are found.” would have been perfectly legal; It’s only the individual questionnaires that can’t be shared with law enforcement, block level data is fair game.

            1. The Census Act says don’t ask if the information is elsewhere available.

              It is elsewhere available. If, like Roberts, you seriously think Ross carefully weighed alternatives and came to a reasoned conclusion, you’re a lot dumber than I thought.

      2. The ACS addresses that issue just fine.

  3. Wasn’t there supposed to be some sort of decision about unanimous juries?

    1. That’s on the docket for next term.

  4. Justice Thomas wrote separately arguing that there was no basis to second-guess the Secretary’s decision, warning that the Court had opened a “Pandora’s Box” of more searching judicial review into agency action – perhaps what we should call “harder look review” – than had previously been authorized.

    Ah. Deference.

    1. I’m beginning to sense conservatives have decided to go all-in every hand, playing short-term longshots because they recognize they have poor prospects over the long term.

      With respect to redistricting, for example, no-holds-barred generally favors the party with more voters. Is America going to become more or less rural, more or less intolerant, more or less religious, more or less white, more or less backward as its electorate continues to evolve (or improve)? When Democrats can design districts evoking bicycle wheel spokes — beginning in densely populated cities, extending in slivers until a district is precisely Democratic enough — liberals will be able to neuter rural voters for a hundred miles in every available direction. In the short term, though, Republicans see gerrymandering as a chance to maintain an electoral coalition, despite having fewer voters, for a few more elections. In the long term, though, cities such as Philadelphia and Pittsburgh, or Charlotte and the Research Triangle, will be able to strangle the backwaters into electoral irrelevance. It takes a bit of work to gerrymander effectively with fewer voters; it’s easy to brutalize the opposition with a majority.

      I can accept just about any set of rules, evenly applied, because I expect my side to be playing the majority hand, increasingly, throughout the foreseeable future.

      1. Yep, I believe your conclusion is the standard projection of the two-party system at the moment. Unless perhaps the Hispanic population makes a break for the R’s, we will see such projections come to fruition.

        1. Along with the end of America. Look at the volunteerism rates among “Hispanics.” A country full of these people won’t be America.

  5. All together, a good set of court outcomes.

    1. Political Gerrymandering. This is a political question, and it should stay in the political domain…not the courts. There’s no Federal law against political gerrymandering. The states can handle it, not the federal courts.

    2. Citizenship: As expected, Citizenship questions on a census are valid, commonly done, and completely legal. They are recommended by the UN, and are as easy and simple as racial questions. (In fact, they should probably be asked ahead of racial questions). What you’re not allow to do is mislead about why you’re putting the citizenship question on the census. Which is fair.

    1. This is a political question, and it should stay in the political domain…not the courts.

      That’s saying we should leave it up to the beneficiaries of gerrymandering to fix it. Not very likely. The whole point of doing it, after all, is to entrench the party in power in defiance of democratic processes.

      We don’t let the embezzler decide whether to make restitution.

      1. And yet, in many states, we see the “beneficiaries” making laws about it….

        So….

      2. But when two parties are embezzling from each other, how should restitution be determined?

      3. Good to see bernard11 joining the liberal wing of the Supreme Court in recognizing that the Bipartisan Campaign Reform Act was nothing but a cynical ploy by incumbent politicians to entrench their advantages. I hope the rest of the liberals will join them in recognizing that Citizens United was correctly decided.

        Of course, it seems to me that we have a democratic majority in the House right now. They were the victims, not the beneficiaries, of most of the gerrymandering in the last go around and aren’t in a particularly strong position to benefit from it in the next go around either. The Senate and Presidency, of course, are non-gerrymanderable. So what’s standing in the way of meaningful reform right now?

        1. Of course, it seems to me that we have a democratic majority in the House right now.

          So what’s standing in the way of meaningful reform right now?

          Reps don’t do the gerrymandering, jph. Statehouses do.

          1. If you wanted a federal law to fix gerrymandering nationwide, the House of Representatives might have a role to play.

            1. And everyone here knows why that’s not going to happen – a Presidency and Senate whose elections are already antipopulist by design.

              So what’s with pretending?

              1. As long as you think your desired party will never again win the Senate and Presidency simultaneously with the House, you may have a point.

                I don’t think you think that though.

                1. I don’t much care about what my desired party will do when it comes to this structural stuff. I care about keeping our republic acting like a republic.

                  1. “I don’t much care about what my desired party will do when it comes to this structural stuff”

                    Which is exactly why they did nothing from 2008 to 2010…..

                    1. Telling switch from me to they.

                  2. God you lie so much. You only care about your preferred party dipshit. You make it clear in every thread.

                    1. You see what you want to see. And you want to fuel your partisan rage, it seems.

                    2. Yeah. You complained about MY partisanship once. Never mind the fact that I’m not currently a member of any party.

          2. “Reps don’t do the gerrymandering, jph. Statehouses do.”

            If you would put even just a little bit of effort into informing yourself about the opinions you are pretending to discuss, your “contributions” wouldn’t be so utterly worthless. They still wouldn’t be worth much, but maybe a little something. You didn’t even have to read the opinion–just the syllabus would have been enough. “The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.” Apparently even that was too much effort before you decided to grace us with your wisdom.

            1. jph, calm down with the insults, as usual.

              Now, Congress does not just mean the house. And the Senate is already nondemocratic by design, so stop being disingenuous.

              1. “Now, Congress does not just mean the house.”

                If I ever said anything so stupid as Congress just meaning the House, I would be down at your level of ignorance. But I didn’t. And the composition of Congress has nothing to do with your response about states doing the gerrymandering, not the federal government or your failure to read even the syllabus before jumping in. It’s clear from your response that you weren’t familiar with either the opinion or congressional power over elections, but thought you just had to grace us with your wisdom regardless.

                “And the Senate is already nondemocratic by design, so stop being disingenuous.”

                I’m not being disingenuous you fucking moron. The only branch of the federal government whose members can benefit from gerrymandering is currently controlled by the party that benefited the least from it last time and isn’t in a particularly strong position to gain from it in the next round.

                1. Sarcastro has freely admitted he wants the senate abolished. He doesnt believe in states rights at all but prefers authoritarianism from a centralized government, preferably one Democrats control. He doesnt want this to.occur through constitutional amendments but would prefer it done through fiat by the judiciary. He has been open about this for years. It is not worth explaining how our government works to sarcastro because he doesnt respect or understand its design.

                  1. What are you talking about? Your strawmanning has gotten pretty out of control.

                    I’ve said I’m okay with the electoral college, even, so maybe check where you got your info.

        2. ” it seems to me that we have a democratic majority in the House right now. They were the victims, not the beneficiaries, of most of the gerrymandering in the last go around”

          Depends on where you happen to be standing at the moment. Oregon has 5 districts, and 4 of them are occupied by Democrats, despite something like 30 of the 36 Oregon counties being majority-Republican.

          1. Yeah, James. And of those 30 counties, 15 of them combined have in the aggregate less than 5% of the state’s population. So in those counties, “majority Republican” is just a tendentious way to say, “tiny, tiny, minority.” What point are you trying to make?

            1. Gosh, it’s so… unusual that the R’s dominate politically in the rural, largely unpopulated places.

              Do you believe that Oregon has 80% Democrats and 20% Republicans (as it’s Congressional delegation does)?

    2. I haven’t looked at the partisan gerrymandering opinion yet, but my initial reaction is in agreement with your comment; the judiciary should abstain from entering the fight. From an institutional perspective, I have trouble seeing how the courts could ever hand down a ruling that doesn’t frequently irritate half the country, which means that every case is going to put the courts in the partisan cross-hairs of one of the parties. Democrats may be unhappy in this case, but if the court’s were to actively police the partisan make-up of districts judgments would sometimes favor one party and sometimes the other. The result being that partisans of both sides resent the courts because they focus primarily on when they lose, and the judiciary finds itself the common foe of both. Not a good position to be in.

      Personally, I find the practice of gerrymandering – of purposely drawing geographic lines to secure the continued dominance of some views over others – to be cheap tactic that undermines the very institutions that the party in question seeks to occupy. With that said, a broader historical perspective shows that no party has ever been able to figure out a way to permanently entrench itself in power. Demographic shifts, the emergence of new cross-cutting issues, and multiple layers of government each with separate institutions seems to continually create intra-party cleavages that reshape the political landscape. In other words, while frustrating in the short-term, the process appears to have a sort of natural balance in the long-term.

      1. a broader historical perspective shows that no party has ever been able to figure out a way to permanently entrench itself in power.

        The gerrymandering party has never before had the technological tools available today.

        1. Populations move, populations shift. Especially in a 10 year window. Learn basic facts.

          1. Jesse,

            Could you stop with the fucking insults? Can you not write a comment without one? If you have something to say, go ahead.

            1. Look at Northern Virginia. A combination of “Hispanic” immigration and government bureaucrats moving from elsewhere has turned a deep red state into deep blue, in a very shot period of time.

      2. ” no party has ever been able to figure out a way to permanently entrench itself in power.”

        But they have figured out ways to extend themselves in power beyond the time they should have been shown the door.

  6. Roberts is a disgrace. I appreciate Adler’s consistent efforts to show that the Court is not as political as people think. But it’s not Roberts’ role to do that by neglecting the law to side with leftists whenever they throw a big enough hissy fit. He frankly seems concerned with his reputation and pleasing the rotten intelligentsia.

    “special circumstances”
    “unusually strong showing”
    “unprecedented step”
    = because Trump. As Adler admits at least in relation to “slapdash character.”

    “it is interesting to think how actions of prior administrations – such as, perhaps, politically motivated Affordable Care Act implementation decisions – would fare under this more rigorous standard.”

    Haha. Understatement.

    1. Glad to see you’re down with pretextually following the law as good enough.

  7. Isn’t the crux of Manning’s law review article, which Scalia cited regularly, specifically about the motivations (or pretext) underlying agency rule-making? To infer that individuals within an agency are motivated to put forward ambiguous regulations, and that this provides a reason for questioning the degree of deference afforded, opens the door to considering motivations in other contexts.

    I’m not sure you can have a standard that is based on assumptions about motivation and then cry foul when the court considers motivations. Do they matter (as opposed to the stated purposed) or don’t they matter? Is it okay to infer motives on an entire institution but then not to do so in specific cases? Either way, the door to considering motives wasn’t suddenly opened-up in the census case; it’s been open for a while.

  8. One of the anomalies of Reynolds v. Sims is that it led courts to strike down state constitutional provisions that had provided some protection against partisan gerrymandering, such as a requirement that district boundaries respect county or municipal lines, contiguity requirements, etc., all designed to provide protection against exactly the political gerrymandering that now plagued us.

    In tearing down these safeguards in order to achieve the chimeric goal of perfect equality, the courts enabled political gerrymandering in a manner much more thorough than previously possible. With no political boundary or contiguity limits, all previous restraints on pure partisanship were lifted. In doing so, the courts appear, if we’re honest about it, to have in many instances made things worse.

    Courts should consider allowing some moderate deviation from pure one-person-one-vote to allow states to institute geographic and contiguity requirements that tend to limit political gerrymandering.

  9. Gerrymandering is the act of deliberately minimizing, if not outright neutralizing, a citizen’s right to representation.

    With the court deciding that it’s perfectly ok for a political party to take steps to invalidate the votes of those who would otherwise disagree with their policies, the SCOTUS has put the final nail in their own coffin.

    As far as I’m concerned, none of their decisions hold the weight of law anymore.

    1. Want a system to perfect one-man-one-vote AND completely get rid of gerrymandering? Use virtual districts.

      North Carolina keeps 13 districts (or whatever the census requires). Each North Carolina congress person represents a specific numbered district, with a continuing constituency, just as at present. But starting the day after virtual districts are approved, registered voters are assigned randomly to one of the virtual districts, there to remain until their registrations expire, or they move out of state. All voting is by mail.

      But as for the districts themselves, there is no “there” there. The virtual districts are encompassed alike by the state’s boundaries, but otherwise they are locationless. Each congress person gets a list of his constituents, and their registered mailing addresses, but those can be anywhere in the state. The random assignment process assures nearly perfect one-man-one-vote equality. As new voters register, they get assigned at random too.

      That system would have some interesting effects on election dynamics. It would take regional pandering out of the picture. Elections would be decided principally on two factors: first, the overall preponderance of partisan sentiment throughout the state; second, the estimation in each district’s voters’ eyes of the personal characteristics of their candidates.

      Special interest influence would be harder to achieve, because voters who favored particular interests would be dispersed among districts instead of geographically concentrated in one of them (a sort of modern political science manifestation of Madison’s counsel in Federalist 10). Elections which could not be contested on the basis of pork barrel regionalism would tend instead toward a focus on the perceived public good of the whole. Of course, majority minority districts would be right out, which would disappoint some, but by no means disfranchise their interests.

      Best of all, the Supreme Court would have absolutely nothing to say about it. I know, because the chief justice just told me so.

      1. There are good reasons to group people by geography for representational purposes. Geography makes a difference. A person in Asheville probably has a different view on rising sea levels and hurricane relief than does a resident of the Outer Banks. People who live in cities tend to have a much stronger opinion on homelessness than do people in rural areas.

        1. Right. And with a virtual districting scheme, those particularized interests would be in play at the swing-vote level in every race, instead of being the dominant influence in just one race. Is it your opinion that what the nation needs now is more factionalized government? Do you think Madison got it wrong in Federalist 10?

          1. Wrong.
            Putting all the people who have a reason to care about, say, hurricane mitigation problems into the same district means that their concerns will likely be discussed during the campaign for that district, and the winner of the election will have heard about the constituents’ concerns. Spreading people who care about such issues into districts that have no concerns on the issue reduces the likelihood that the issue is significant in the campaign, and reduces the likelihood that the election winner has heard all the concerns of voters who have them. What you’d get instead is a bunch of legislators whose concerns are those of central NC… Raleigh to Charlotte… because that’s where the biggest bloc of their voters happen to be.

            Please stay on this subject, rather than wandering off attributing opinions to me that have nothing to do with what I said.

            1. I am glad to address your hurricane example. I live in a coastal area subject to hurricanes. Where I live, hurricanes are common enough, but typically not major hurricanes. The town suffers notably more damage from winter storms.

              I chose my house carefully, to find a sheltered location out of the wind, nor right on the shore, and at an elevation above even a major tsunami’s reach. Because of that, I am not required to carry flood insurance. Nevertheless, long after I bought the house, insurance regulations and political opportunism combined to place my house in a district subject to punitive treatment in the insurance market. Nobody paid attention to local facts, they just dropped an overlay along the entire coast, and sky-rocketed insurance rates within that overlay. The apparent point was to get cash to defray the cost of hurricane damage in distant places, where the risks are far higher.

              But paying damage costs in high risk areas at subsidized rates also encourages coastal development in places where no one should ever build, including places in my town. By indemnifying repeated damage, such costs are maximized, and made perpetual. And because the cash source for those payments was targeted in that localized sort of way, it is not politically possible to get it undone. The vast majority of the state’s voters go unaffected, and real estate and insurance interests throughout the state prefer the subsidies for reckless development, apparently on principle.

              So I don’t see how localizing politics guarantees rational politics. In this case it has done the opposite. If everyone in the state had skin in the game, there would be a colorable political case for a policy which made more sense, to buy out damaged properties with insurance money, and to forbid rebuilding and repeating the cycle. And people in safe locations like mine would not be singled out to subsidize foolish risks being taken far, far away.

              What I am suggesting is that you would get more rational development policy on the coast of North Carolina, for instance, if the people living on the coast were NOT disproportionately heard on the subject. Let them add their voices to all the others voices from people elsewhere, who are nevertheless affected by what they want.

              1. “I am glad to address your hurricane example. I live in a coastal area subject to hurricanes. Where I live, hurricanes are common enough, but typically not major hurricanes. The town suffers notably more damage from winter storms. ”

                Who cares? This coming from someone far enough inland to not suffer damage from either. Leave the roads alone after the storms (winter or summer) wash them out and spend the money fixing Raleigh rush hour traffic instead. Between people who think like that, and the same except “Charlotte” instead of “Raleigh”, we’ll own every one of NC’s Congressional delegation (and the state government, too, if you implement your plan there, too.)
                Hint: Spend some time in a state where there is ONE big city, and all the rest of the state rural, and you can see it in action. There’s more people in the city, and they call the shots for the whole state. The people who live not-in-the-city wind up feeling disenfranchised, for good reason. That’s what your proposal would bring.

                1. Everyone in my town, including me, will suffer economically and mutually when roads wash out, or when sea level rise affects utility infrastructure. Those are risks I chose to take rationally, to live in a place where I am close to salt water—so not far inland, as you suggest.

                  What I object to is a political system which punishes my foresight and virtue in finding the right place to live, with neighbor’s houses which have gone undamaged by storms since the 17th century. My house is not going to become a public charge because of storm damage, but I am being singled out, in effect, for taxation to defray storm damage costs incurred by fools and promoted by opportunists. And the political system you like makes it worse.

                  1. “Everyone in my town, including me, will suffer economically and mutually when roads wash out, or when sea level rise affects utility infrastructure.”

                    But everybody in Charlotte will not. Now, are there more voters in your town, or in Charlotte? Guess which one the politicians will pander to when it’s time to get re-elected. Hint: not you. You’re advocating a system for ensuring that your “representative” doesn’t represent you. And you think that’s a feature!

                    1. James, apparently you have not at all grasped my point. I want “Charlotte” to ignore the predictable catastrophes which coastal development delivers. I don’t want fools to be able to build in harms way, and then get public recompense when the inevitable happens.

                      More generally, I want today’s politics to shift in the direction of emphasizing the general good, and away from bolstering interested factions. A political system optimized to provide influential access to special pleaders is exactly what I don’t want.

                      It occurs to me that you perhaps dwell in some rural hinterland, and feel disfranchised. Because you cited rural Oregon above, perhaps I should mention that I lived for a time near Halfway, in Baker County. I am guessing that was a good deal more rural and out of the way than anything you are accustomed to. Never once did I suppose that the decision I made to live there had resulted in my punishment, or disfranchisement, because I lacked influence to control government in Portland, 400 miles away. Of course I expected Oregon politicians to “pander” to the vast majority of Oregonians, among whom I was not. I would have thought it reprehensible for anyone to take the opposite position, but you seem to insist on it.

                    2. “James, apparently you have not at all grasped my point. I want “Charlotte” to ignore the predictable catastrophes which coastal development delivers. I don’t want fools to be able to build in harms way, and then get public recompense when the inevitable happens. ”

                      You don’t want your “representational” government to respond to the problems of you and your neighbors, so you’ve proposed a solution to cement that result. I got your point.

                      “It occurs to me that you perhaps dwell in some rural hinterland, and feel disfranchised. Because you cited rural Oregon above, perhaps I should mention that I lived for a time near Halfway, in Baker County. I am guessing that was a good deal more rural and out of the way than anything you are accustomed to.”

                      Sure I dwell in some rural hinterland… I live in the Triangle. Oh, wait, you meant when I lived in Oregon, where I lived in Portland. Your keen insight is good as ever.

      2. But this is also potentially highly harmful for minorities.

        If a state has two geographical boundaries, the coasts and the inland desert (a la California), and there is one sheep and two wolves, then the sheep can flock together an form a majority to outvote the wolves who want to eat them. But under your plan the wolves are a majority in every district, and the sheep always get eaten.

        That may be a desired outcome for you, and it’s actually what we see in California and Missouri. Californian conservative farmers have their riparian rights stripped along with their self defense rights, while St Louis liberals have their abortion rights stripped.

        1. Robert Beckman, there is an element of truth in what you say. On one hand, I expect some blacks especially would dislike a virtual district plan, because of the difficulties it puts in the path of majority/minority districts.

          On the other hand, your point is a two-edged sword. Grouping minority voters in their own district has been one of the favorite tools that gerrymander designers resort to. It assures that instead of minority members always being an influential swing vote in every district, election designers can relegate them to making do with a reliable shot at electing a single legislator, who may sometimes (but rarely) become influential as a minority member in a legislature—where the same majoritarian disadvantage comes into play, but at a higher level. See the U.S. Senate, for instance, as a place where wolves are currently growing sleek by preying on minority sheep.

          Also, times are changing. Whites have shown they will vote in large numbers for minority candidates in at least some states, and elect them not infrequently. Barrack Obama was president. Kamala Harris was attorney general of California, and is running for president. Cory Booker has been the junior Senator from New Jersey, and is also running for president. That swing vote angle has proved pretty powerful in the elections of those figures and others.

          The virtual districts method would greatly multiply the number of districts in which swing vote power came into play. And at least on the political left, there is no shortage of white voters, and would-be policy makers, eager to take advantage of the opportunity to choose a swing-vote minority candidate to advantage the chances of winning a seat.

          It is by no means obvious anymore that if blacks want to see people who look them, and/or vote their interests, in legislative bodies, that the best way to get more of them into office is to use majority/minority tactics. Quite frequently, that will prove the opposite of the truth.

          I suggest the fans of the partisan gerrymander would applaud continuation of the system you want, and hate virtual districting, because it would increase the real political power of minorities. I suspect that after experiencing for more than a generation the way gerrymandered districts have been used to cabin their political influence, many blacks, especially younger blacks, might be ready to see if they couldn’t do better by going virtual.

          1. “On one hand, I expect some blacks especially would dislike a virtual district plan, because of the difficulties it puts in the path of majority/minority districts. ”

            Majority/minority districts have been one of the major stumbling stones in the way of doing anything about gerrymandering, because they ARE gerrymandering. And it’s really hard for the judiciary to prohibit gerrymandering at the same time as mandating it.

            But your “virtual districts” sound disturbingly like the “functional constituencies” China uses in its fake democracy. Sounds easy to covertly manipulate.

            1. “Majority/minority districts have been one of the major stumbling stones in the way of doing anything about gerrymandering, because they ARE gerrymandering”

              Not necessarily. Minorities are often grouped fairly tightly, because of remnants of housing discrimination and the old “birds of a feather” habit.

      3. Stephen,

        That just wouldn’t work. It would produce unanimously one-party delegations from every state, even those where the partisan division was close to even.

        Consider.

        Say there are 250,000 people who vote per Representative, which is approximately right. Now suppose a state has a population that is 51% Republican.

        You want to draw a sample of 250,000 voters for a virtual district. So your sample has a standard error of .1%. In order for it to contain a majority of Democrats that proportion would have to be ten standard errors away from its expected value. That won’t happen. Not once in 435 times, not once in 435,000,000 times.

        1. Nonsense. People will continue to vote for candidates they prefer for idiosyncratic reasons, not just for a particular party. Some Republicans, some election days, will prefer a Democrat. Genuine independents also figure in, and choose candidates according to god-knows-what criteria, which for some independents probably don’t stay the same from week-to-week. So independents will continue as a randomizer. And not only among the voters, but also among the candidates. I would expect more independent candidates in more races.

          Also, you should not expect experience with the present system to accurately predict how candidates would campaign, and voters respond, under a different system with different (more validly democratic) incentives. I suggest the self-evident need to focus closely on the common good in a virtual districts system would often deliver races in which both candidates took similar positions on most issues, and on big issues, but in which each attempted to find things at the margins to distinguish himself—with the result that party partisanship among voters would be loosened by varying preferences for those side-dish issues.

          What a relief that would be from our current system. Candidates now go to opposing extremes on what constitutes common good—force voters to make nasty choices they don’t want, on big issues that really matter—and then in office ignore what they said during the campaign, and govern according to donors’ preferences. Do you think a tendency for candidates to converge on important issues would be worse than that?

          I think you are objecting more to our winner-take-all election system than you are to virtual districts. Plus which, your argument strikes me as a tacit assertion that our representative system of government can’t work unless politically extraneous background factors (or, as in the case of gerrymandering, politically pertinent background factors) shake up the result to make it more random in comparison to voter preferences. If that is true, it does not strike me as a reassuring feature of the present system.

          In general, I suggest your objection privileges party labels ahead of political substance.

          1. I suggest your objection privileges party labels ahead of political substance.

            Which accurately describes our current situation. Plus, there aren’t that many true independents. Most who describe themselves that way still have strong party preferences that affect their votes.

            Anyway, none of that matters. The delegations are going to be unanimous, unless a party nominates a bank robber or somebody for one of the races.

            Think of it this way. Leave party loyalty aside. Just consider vote tallies. Statewide, one party or the other will get a majority, say 51%. Now take that 51%, whatever their party preferences, and randomly divide it into subsets of 250,000 or so voters. Each subset will have a majority matching the statewide majority.

            How can it not? It is astronomically unlikely to get a sample with a minority party majority. And most statewide tallies aren’t 51-49.

            1. Bernard, how can you completely subtract the entire political process from your estimate of outcomes? Your example and question seem to base conclusions on statewide outcomes. I am not proposing you assign voters to districts after an election. I am proposing you do that when the voters register, before an election.

              These are not statewide elections. Each district will have a different set of candidates, offering different programs, and achieving popularity to different extents. That will of course produce an assortment of party outcomes from different districts in any election which isn’t part of some lopsided political wave.

              Another thing you seem to overlook is that different classes of voters display party loyalty to different degrees in different circumstances. Consider black Massachusetts Democrats vs. white Massachusetts pro-union Democrats. Both groups are normally down-the-line loyal Democratic voters. But put a Republican candidate who was personally and politically like Scott Brown into a house race in Massachusetts, and those groups would oppose each other in that district. So the district that candidate ran in would not vote alike with the one some other candidate contested elsewhere—which would vary their outcomes.

              A further point I suggest you overlook. The centralizing tendency produced by virtual districts absolutely would make the national tally of statewide results more volatile than it is now (it is practically stagnant now). Why? Because minority swing voters would become far more influential than they now are in most districts. Presently, you always expect Georgia to feature mostly Republican House winners. You could not rely on that with virtual districts. Arguably, virtual districting could turn typical Georgia results pro-Democrat. It would certainly make some districts more competitive. Likewise with North Carolina, and maybe several other states featuring a large percentage of minority voters.

              Texas would be in play too. Here is an exercise for you. Take a look at the Wikipedia article on the Texas House delegation. Note the shapes of the districts for either party. Many of the Democrats’ districts are wandering, attenuated monstrosities, undoubtedly drawn that way to pack in as many minority voters as possible, to reduce their influence elsewhere. Virtual districting would move many of those minority voters elsewhere, and inevitably reduce the Republican advantage across the Texas delegation.

              I don’t think your statistical reasoning in the next-to-last paragraph matches the process I just described. If you think otherwise, please explain a bit more, so I can understand.

              1. ” I am proposing you do that when the voters register, before an election. ”

                And whoever controls this process… (i.e., the party currently in power)… will see to it that the people likeliest to vote their way outnumber the people likeliest to vote against them in every district, and the state sends all one party delegates to Congress. That was your desired outcome, right?

                1. My suggestion is to assign voters to districts at random, using a computer. So nobody will control the process. Once assigned, that is where the voter stays, from election to election, giving each district’s representative a chance to earn constituent loyalty. Each representative gets a constituency as stable as the ones they now have.

                  1. “My suggestion is to assign voters to districts at random, using a computer.”

                    Computers don’t do anything by themselves, they have to be programmed. One of the things that computers are particularly bad at is randomness.

                    I’m sure the incombents will thank you for ensuring that the electorate that elected them retains the ability to do so from election to election.

                    1. One of the things that computers are particularly bad at is randomness.

                      James, that is pure crap, and I think you know it. Sure, computers are pseudo-random, unless you put something real-world into the system to shake it up. And that would be a big deal if you made the mistake of relying on a computer’s random number function for important cryptography.

                      For the task of sorting registered voters into 50 districts, or 4 districts, and delivering results which as a practical matter are not distinguishable from genuinely random results? Please explain to me how anyone could rig that in such a way that it could both accomplish some nefarious purpose, and also not be readily checked and found out.

                    2. So somehow I got the italics wrong. What shows as Roman should be italic. What shows as italic should be Roman.

                    3. In short, James, you’ve got nothing. No description of the form your asserted manipulation could take, only an assertion of the bad results you expect. No good faith argument. No facts.

                      Let’s try something simpler. Are you happy that SCOTUS legitimized partisan gerrymandering?

                    4. “James, that is pure crap, and I think you know it. ”

                      I can only assume that you use the term “pure crap” to refer to things that are 100% true but don’t fit with your preferred narrative. If so, this is a strange usage but correct, it’s 100% true and doesn’t seem to fit your preferred narrative.

                      ” Please explain to me how anyone could rig that in such a way that it could both accomplish some nefarious purpose, and also not be readily checked and found out.”

                      Why would anyone need to do that? Who said anything about not being readily found out? The R’s aren’t particularly sneaky about their attempts to disenfranchise voters who tend to vote D, and neither side hides their gerrymandering at all.

                      This “nothing” you say I have is A) a “random” computer system which you admit isn’t random, and two groups of people with a lot of incentive to ensure that it’s not random at all.

                      ” No description of the form your asserted manipulation could take, only an assertion of the bad results you expect. No good faith argument. No facts. ”

                      Unless you count the facts, the argument, and the description of the form the manipulation would take, all of which you’d prefer to pretend aren’t there in black and white, AND THEN GO ON TO COMPLAIN ABOUT A LACK OF “GOOD FAITH ARGUMENT”.

                      ” Are you happy that SCOTUS legitimized partisan gerrymandering?”

                      No. But it’s what I expected.

          2. “Also, you should not expect experience with the present system to accurately predict how candidates would campaign, and voters respond, under a different system with different (more validly democratic) incentives”

            I would expect that parties would continue to act in the best interest of their party, which means manipulating the system in order to stay in power, if they are in power. This means gerrymandering will take on a new form but will not magically disappear.

            1. James, I challenge you to imagine what form that manipulation could take, and describe it. The only thing I foresee would be whatever manipulations they can mange to keep virtual districts from happening.

              1. Stephen, I challenge you to fucking read where I wrote a full and complete answer to your “challenge” before you even made it.

                1. (Repeated, because it went in wrong place before)

                  In short, James, you’ve got nothing. No description of the form your asserted manipulation could take, only an assertion of the bad results you expect. No good faith argument. No facts.

                  Let’s try something simpler. Are you happy that SCOTUS legitimized partisan gerrymandering?

                  1. In short Stephen, it doesn’t matter how many times you’re shown to be wrong because magically you can’t see it.

        2. Bernard, what would you say to virtual districts with ranked-choice voting?

          1. I don’t see how ranked choice voting would help in cases where there are only two candidates. I suppose the occasional third-party candidate would attract some support, which would be good, but I don’t see any real effect on outcomes.

            I personally would prefer statewide at-large election, with the larger states maybe broken down into a handful of regions from which several candidates were elected at large.

            1. Actually, that’s my preference, too. Ideally, you’d treat votes like proxies; Each candidate would get a weighted vote in the legislature in proportion to their vote share.

    2. Try defying a SCOTUS decision and you will feel the weight of the law…

      1. Nonsense.

        SCOTUS decisions are ignored all the time without consequence. I’ll take my chances, thanks.

        1. Most people do a fine job of ignoring SCOTUS cases all day every day.
          Ask an American to name all the SCOTUS cases they’re aware of and you’ll get around 4, maybe 5 unless you happen to be asking a legal practitioner. Roe v. Wade, Citizens United, Bush v. Gore… and… uh…

    3. “Gerrymandering is the act of deliberately minimizing, if not outright neutralizing, a citizen’s right to representation.”

      Gerrymandering is the act of drawing districts in order to obtain a specific political outcome. Minimizing a citizen’s right to representation is merely one possible political outcome that can motivate gerrymandering.

  10. I feel like both SCOTUS and the District Court skipped a step in the census case. While both rightly found Article III standing, since the challengers alleged injuries that were fairly traceable to the citizenship question, neither court found the the citizenship question to be the legal cause of any injuries. Thus, while the challengers had the right to sue, it was never established that they were entitled to relief.

  11. “Roberts also concluded that special circumstances, specifically an unusually “strong showing of bad faith or improper behavior”

    Is this perjury?

    1. Perjury only applies to sworn statements. If judges had to take an oath that their opinions were true and correct to the best of their knowledge we might get some vastly different opinions.

      1. When Ross testified to Congress, was he under oath?

        1. I doubt it. The point of testifying to Congress is for Congress to learn something, and they don’t learn anything from having witnesses decline to answer because they don’t want to be caught by a gotcha question.

  12. We might have had a different decision in the gerrymandering case, if the institutional anti-gerrymandering movement hadn’t been so thoroughly captured by the left.

    This has resulted in one case after another where supposed “tests for gerrymandering” were proposed, that could easily be seen to actually be tests for proportional representation. Which the Court has already ruled is NOT constitutionally mandated.

    This poisoned the well, and the Court finally got sick of it. Or at least the ‘right’ side of the Court did, the ‘left’ side is fine with favoring Democrats in the guise of fighting gerrymandering.

    The fact is, both parties engage in gerrymandering, and the only way anything is ever going to be done about it, is if the coalition against gerrymandering is allowed to be bipartisan, and to fight both sides’ abuses.

    Even then it will be a tough fight, because most gerrymandering isn’t for partisan advantage, it’s to help entrench incumbents. But at least it won’t be as hopeless as fighting the fight with half your troops banned from the fight.

    1. And even if something is done to rein in gerrymandering, any proposed solution will create its own problems. Roberts realized that there really is no one right answer, much less a constitutionally mandated one. A wise decision that will serve the court and the country well over time.

      1. Nah, Roberts just announced a new era of desperate majoritarian struggle in U.S. politics—while removing the nation’s counter-majoritarian branch from the fray. And his side is in the minority.

        This won’t turn on Roberts immediately, but as things work out over time, Roberts and the right wing will regret this decision. Consider the sustaining advantage which minority-protective gerrymanders have enabled for the Rs. Give some thought to what it will look like when actual majorities achieve similar political power, and the ability to reinforce that power with their own gerrymanders. The result will be an all-too-durable Democratic Party right to rule, which will not be good for the nation.

        This decision by Roberts is extremely unwise. The best that can be hoped for is an unprincipled reversal, to cancel what has been an unprincipled decision. I expect Roberts, or a successor, will be goaded into doing that promptly after Democrats next get control of all the political branches.

    2. Brett….My take is that SCOTUS ‘called out’ Secretary Ross for lying in this decision. Which he clearly did.

      Look, I personally think we should be asking about citizenship. To me, this is a ‘no-brainer’ and I really don’t see the rationale for not asking this question. But the way the Secretary went about doing this was just wrong. And he was called out for it. Rightly so. Now he has to ‘own it’ and comply with APA.

      The question is worth expediting after the case is remanded back to a lower court. POTUS Trump is right about that, IMO.

      1. So Atlas, you are calling for a better pretense?

      2. Oh, I agree with you. They were using a pretext to justify the question. Which was really stupid, because they didn’t need any pretext. They could have just said, “While using the answers to particular Census questionnaires is illegal, block level data on the number of illegal aliens in the US would be extremely useful to ICE, and isn’t legally prohibited. That’s why we want it.” and they’d have been good.

        I think Trump is working with people suffering from a bit of Stockholm syndrome, they feel the need to conceal perfectly legal motives because they have, to some degree, internalized the opposition’s values.

        1. Oh come on.

          Now it’s the left’s fault that Ross is a moron and a liar?

      3. Sorry for the confusion. Yes, it seems that Roberts is accusing the Secretary of lying before the court. Are there consequences beyond missing their deadline and public humiliation?

    3. Maybe you’d care to provide some backup for your claims.

  13. Kagan in Rucho:

    “partisan gerrymanders … deprived citizens of the most fundamental of their constitutional rights”

    Kagan in Department of Commerce (joining dissent by Breyer):

    The federal government can’t ask a citizenship question!

    In theory, if one were concerned about the deprivation of citizen rights you would want to know how many citizens are present in a given jurisdiction. But apparently this simple application doesn’t hold water for Justice Kagan.

    In defense of Breyer’s dissent, he is a much more careful and thoughtful writer than Kagan, and less prone to these simple errors in logic.

    However, he did join Kagan’s dissent in Rucho, so maybe some blame should be laid at his feet.

    1. In theory, if one were concerned about the deprivation of citizen rights you would want to know how many citizens are present in a given jurisdiction.

      How does that follow?

    2. Best post this entire thread. It lays bare the motivated reasoning of at least one, maybe more, of these judges.

  14. Roberts fell for the “legitimacy” lefty scam again in the census case, just like Obamacare.

    Such a weak, pathetic man. Hoping always to buy lefty love.

    1. Right. “Legitimacy” and “legacy” basically are code words for “appealing to leftists.”

      1. Courts must always be aware that they have neither the “purse” of the legislature, nor the “sword” of the executive, and thus unless they are bossing around lower courts or letting the free market do something for them, that they must not put out decisions that the public and the elected branches will totally reject. Imagine if Ike, who himself was personally a bit racist, had not decided to uphold the Rule of Law? Brown would have been a joke, which it was anyway, when it came to implementation.

        I suppose the reason Heller/McDonald were so narrow, not undoing a plethora of unconstitutional gun laws (aside from the necessity of getting Kennedy’s vote) was because the court was not going to be able to get states play along. It would have been as bad as Brown.

        1. “they must not put out decisions that the public and the elected branches will totally reject.”

          “A majority of voters in a new poll say that a question about U.S. citizenship should be included in the 2020 census, an issue currently before justices on the Supreme Court.

          Six in 10 registered voters, 60 percent, in a Hill-HarrisX survey released Tuesday said that the U.S. Census Bureau should ask the citizenship question even if it results in fewer responses. Another 21 percent said the question should not be included, while 19 percent were unsure.” 4/30/2019

          The Executive and the Senate would have accepted the correct decision as well.

          So what is this total rejection you are speaking of?

          Roberts only thinks the acceptance of liberals and the New York Times is important. Weak pathetic fool that he is.

          1. Nice switch, but I was speaking about the Supreme Court’s legitimacy, where it derives it’s institutional power from, holistically, and not about this one particular case of the citizenship question. I thought I made that obvious.

            But to your point about this case, every time there is a blatantly partisan decision, like say Bush v. Gore (even if was correctly decided) or this citizenship case, the battery of good will and legitimacy is drained.

            I ain’t the first to say that Robert’s care about the institutional legitimacy of the Court first and foremost, which you and RWH can call being “weak” or “appealing to leftists/liberals/the NYT”. Characterize it as cowardice if you will, but it is also trying to safeguard a legacy and the court’s reputation, essential for the Court to have power.

            1. ” every time there is a blatantly partisan decision, like say Bush v. Gore (even if was correctly decided) or this citizenship case, the battery of good will and legitimacy is drained.”

              I don’t agree with that for a minute. It constantly refreshes itself with popular decisions. Half the country liked Bush v. Gore.

              1. Of course you don’t agree.

                The Court equally pissed off half the country with Bush v. Gore and Obergerfell and NFIB v. Sibelius and so on, just different halves each time. How many of those can the Court continue to make and keep a reservoir of good will?

                Look, with Heller/McDonald, most of the country already thought that the 2A protected and individual right, so I wouldn’t include it in that list of cases that pissed off half the country. But please provide a list of highly popular decisions most of the country likes. Lawrence maybe, despite it being wrongly decided?

                1. “good will” has nothing to do with it.

                  Courts are not obeyed because we feel kindly towards them.

                  1. Who is this “we” that you’re talking about. Be specific.

                  2. “Courts are not obeyed because we feel kindly towards them.”

                    Ultimately, they are until they aren’t. Courts have power because we give it to them.

            2. Except that when leftists refer to the Court’s “legacy” and “reputation,” they mean WITH THEM, not the population as a whole.

          2. And of course, the only way to get said acceptable is to kowtow on EVERYTHING. Collins went from being a hero (for ACA) to a traitor (for Kavanagh).

            1. Yea, I agree, conservatives trying to get approval from liberals is like dealing with an abusive partner who always dangles that carrot just out of reach, and who hits you with the stick whenever. Like John McCain found out. But Roberts is looking at obtaining goodwill from public opinion and maybe from elected officials, not liberal media hacks.

              1. Right, but he’s mixing up which is which. He thinks that the Times represents “public opinion.”

                1. The NYT is a good barometer of liberal NPC groupthink, on that we can both agree.

                  But unless we read that, say based on account of a former clerk, that Roberts cares what the NYT editorial board thinks of him, we have to default into the nebulous umbrella of saying that Roberts clearly cares about the Court as an institution and public opinion in general.

                  Another thing I’m not the first to say, is that Roberts is playing the long game, and not turning the court to originialist to fast. There is likely some of that going on as well.

                  All I’m saying, at bottom, is that it is not as cut and dry as Roberts wanting to get invited to the right cocktail parties. Yes, he was a coward in making the mandate a tax, but he also didn’t want the Court to be in a Taney vs. Lincoln situation, or a FDR vs the Court situation. The Court always looses when it is faced with a concerted pushback by the other branches.

                  1. “Roberts clearly cares about the Court as an institution and public opinion in general. ”

                    Yet in both the Obamacre case and the Census case, public opinion was against him.

                    He only cares about certain “public opinion”, not public opinion.

                    1. What was the public opinion in Obamacare in 2012 when NFIB was decided? It was about 53% oppose. Hardly a mandate against the law that the Court could look to, eh? Pretty much pissing off half the country which went on in a few month to re-elect Obama by a handy margin.

                      Moreover, it wasn’t the just law that the Court would have been ruling against, but Obama himself, as the press and he made it personal. Obama was, and still is, fairly popular.

                      Now, to get back to an earlier comment, could you provide that list of court cases that build up a reservoir of good will with the public.

                    2. Again, good will is not relevant.

                    3. Good will is entirely relevant, because the Court’s relies almost entirely upon the “good will” of other branches and public opinion for its legitimacy.

                  2. mad_kalak, the pattern is pretty clear by now. Roberts husbands the court’s legitimacy in cases with political valance, but with minimal political effect—like Obamacare. He does that because he knows that he plans to expend strategically giant chunks of legitimacy to achieve overtly partisan outcomes in cases with direct political effect—like Shelby County or this gerrymander case. Roberts cannot afford to be seen as overtly partisan all the time, so he chooses the cases that deliver the biggest partisan bang per unit of criticism.

                    That is a clever and purposeful strategy which maximally serves a right wing political agenda. It is also apparently too subtle to be appreciated among right wing numbskulls. Hence the commentary on Roberts from the political right.

                    1. Step. Lath., I agree with that assessment on outcomes, but we don’t know his exact mindset about which cases he decides to go long on and which to come up short on, as he holds his cards close to his chest. To assume his mindset by outcomes is to engage in perhaps to much inductive logic, since we don’t actually know what he is thinking.

                      I wouldn’t say “numbskulls”, that’s just needlessly insulting. First, RWH and Bob are correct that Roberts is being a coward, he was/is, especially in NFIB. Fabian tactics don’t win praise in the short run. Secondly, the reason judges at that high of a level are put there is to vote in such a way as to reflect those who put them there, especially when it counts. So when Robert’s votes to make it a tax instead of a mandate because it was a *tough call*, it is still appropriate and not stupid to say “but that’s what you were put there for!”

                    2. Mad kalak
                      I don’t recall anything in the Constitution which says that a judge’s job is to rubber stamp the priorities of the person who nominated him.

                    3. SLAR,

                      It’s not in the Constitution. It is a part of reality.

                      Why else are judicial appointments fought over so fiercely? The Yankees and Red Sox don’t fight like tigers, so to speak, over which umpires are to call their games.

                    4. However, Bernard, if you ask an umpire, they will tell you that Boston is the only place in the league where large numbers of fans remember which umpires made bad calls in critical situations. And the fans notice when those umpires show up again. Umpires get heckled for years at Fenway. Leastwise, that is what one umpire said in an interview I read a few years ago.

                    5. “However, Bernard, if you ask an umpire, they will tell you that Boston is the only place in the league where large numbers of fans remember which umpires made bad calls in critical situations.”

                      Was this statement intended to be taken seriously? If so, it is remarkably stupid.

    2. Courts don’t like it when you lie to them.

      Though just because you don’t think the Court is legitimate doesn’t mean the perception legitimacy isn’t important.
      You, who unashamedly want to use the Court as an instrument of your preferred policies, won’t get very far if no one thinks the Court is legitimate.

      1. Whose “perception “?

        Conservative “perception” does not matter much [if at all] to Roberts.

        1. In the practical sense I’m talking about, legitimacy doesn’t mean just for a subset. Though it’s tellingly tribal you think it should.

          But even if it did matter, you’ve given up the battlefield on this one. For conservatives as you seem to be defining them, Roberts may win your love one day, but y’all will never see the Court as legitimate; it’s all instrumental.

          1. Legitimacy comes from power. S/C has plenty of power.

            Worries about “legitimacy” only trouble a certain class of weak kneed GOP establishment types, lefty judges [like the district court here] don’t let it bother them.

            1. Legitimacy comes from power. S/C has plenty of power.

              Wow. Always amazed when your stark nihilism reveals itself.

              How many divisions does the Court command?

              1. Armed power is not the only kind of power.

                1. Legitimacy creates authority, which is another form of power.

            2. Bob, I recommend you read Federalist 78 and get back to this conversation.

              1. Hamilton was hysterically, laughably wrong.

                The courts actually rule us.

                The political branches have every act second guessed by the courts. Nothing of any importance is final until dozens of judges bless it.

                1500 district court judges issue “national injunctions” that even if reversed, impose their personal whims on the other branches for months and years.

                1. In every confrontation with the between the Court and elected branches and public opinion, the Court loses. They maybe, maybe, have a little more slack when there is divided government and one branch supports a decision and another doesn’t, but that’s not a confrontation.

                  That you say that “courts rule us” is because elected politicians defer to them to avoid making tough votes. That is not courts ruling us, but rather elected officials abdicating because the public doesn’t hold them accountable. That, my friend, is a very different thing than court’s “ruling us”, especially when elected officials look to courts to legitimize their lawmaking, and to go after small game when they are going after big policies agendas.

                  Again, where is this “power” that the Court possesses. Be very specific. The Supreme Court only has 1 very power that they hold on their own, apart from asking others to implement a case for them. Can you name it?

      2. Coming from the person who supports the party that puts judges on to use the court to implement their sick policies, that’s funny. Did voters in Texas not vote, through their elected reps, that they wanted it to be illegal to bugger a dude in the rear? Why wasn’t their will upheld?

  15. As a complete aside, since we don’t have an open thread, I am having problems – in two different browsers – with the comments section often disappearing, so I have to click on the icon to get it back.

    Not the end of the world, obviously, but an annoyance. Is anyone else having this happen?

    1. Yes. Reason’s commenting system is a POS.

      1. Something we can *all* agree on.

        1. Yup. A preview or edit function, preferably both, would be nice.

    2. Me too

  16. […] Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler] […]

Please to post comments