The Big Case Drops Early

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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11 Responses

  1. Michael Drew says:

    Having a hard time seeing this as the biggest case on the docket now that we know that appellants’ arguments didn’t apparently have a single sympathetic ear on the court to argue to. Taking into account the actual potentiality of divergent outcomes, I think both the public sector union case and the ACA-contraception case are bigger. The public sector union one possibly even if it were likely to have been a lopsided result like this districting case.

    There might be others that bigger, too: I don’t know the docket that well. But I have a hard time seeing a case with a fanciful argument that no justice was going to buy at its heart as the biggest of the term – in almost any term.Report

    • Well, that’s valid, but also easy to say in retrospect. What if one of five conservative Justices, with Scalia in their bloc, had written an opinion more sympathetic to the “multiple possible metrics” claim? Same result, different tone, greater latitude for a state to experiment…Report

      • Will H. in reply to Burt Likko says:

        I see that as doubtful, due to the Chief Justice. He gets to assign who writes the opinion, and he is known for his policy of judicial restraint in not going beyond what is necessary to decide a given case.
        The concurrences do not seem to observe this principle.Report

      • Michael Drew in reply to Burt Likko says:

        Yes, this is retrospect, but I think it’s fine to apply retrospect to an assessment of which were the biggest cases of the term. Seems to make the most sense to me. Given what we now know about their inclinations, I really don’t think there’s much reason to think this was such a big case anymore. The possible outcome of requiring voter numbers might have been the most dramatic possible result comprehended in all the cases on the docket (though I might argue that on the public sector unions case, which is indeed on a knife edge in terms of votes), but I think it was a longshot possibility ex ante, and now we know it had a vanishing likelihood all along.

        In terms of some other opinions with the same result that could have come down – I’m not clear what latitude this opinion doesn’t offer states that others producing the same result might have. The basic equities protected by the Court’s districting jurisprudence that RBG talks about in the beginning of the decision weren’t going to be changed by this case. And in terms of the matter at hand – voter versus population numbers – the Court (unanimously) preserved the flexibility the states now preserved. I’m not sure how much more flexibility was in the offing.

        Moreover, would this notional flexibility have constituted the most significant practical or legal effect that could have come out of any of the cases on the docket? I would direct your eyes to both Friedrichs and Whole Woman’s Health on that question. Obviously this is a matter of personal judgement & persona values in terms of what potential effects would most significant. What I’m arguing is that there’s not much of a case to be made that any one case was at all clearly the potentially most significant one of the term. I’m not sure if that’s because it’s an extremely significant term with multiple very significant cases, or just a fairly significant one with some fairly significant cases of which no one case stands apart as the most significant. In any case, I’m underwhelmed by any argument that Evenwel was that case.Report

    • Michael Drew in reply to Michael Drew says:

      …Perhaps the claim is more about the possibility that RBG could have outlawed using voters, rather than just not requiring it? That makes more sense.

      That seems to have been really unlikely to me as well, though. As the opinion states, the Court has been reticent to step into districting processes (especially for sub-federal offices), and has done so in a way that has carefully preserved a delicate balance of interests. It just always seemed highly unlikely that the Court would now come in with any sweeping change to that balance, which either outlawing using voter numbers rather than population numbers, or requiring it, would have done.Report

  2. Alan Scott says:

    How much should be read into the fact that neither Roberts nor Kennedy joined the separate opinions?Report

  3. Michael Cain says:

    Can a state use registered voters, or eligible-to-register people, as the basis for allocating districts?… Justice Ginsburg chose not to answer that question.

    Perhaps my memory is wrong (happens more these days), but when the Court granted cert, didn’t they limit themselves to the explicit question of whether a state may use total population for the purposes of drawing districts? And I think that I predicted then that the Court would say “yes”, because the four liberal justices would go that way and Roberts at least, with an eye on how “his” Court will be viewed by the historians, wasn’t about to vote to toss the one constraint that is used for districting in all 50 states. Alito and Thomas have now invited one or more states to draw districts based on something other than total population in 2021. Given the age of so many of the justices, that’s forever in Supreme Court time, and predicting how that might go down is silly.

    A friend in Texas has told me all along that, at the bottom, this was not a matter of Republicans (in general) trying to constrain the Texas Democrats (in general). She tells me that this is rural Republicans fighting for their future, in the form of water, against urban and suburban interests, both Democratic and Republican.Report

    • Saul Degraw in reply to Michael Cain says:


      There general view of this case from when cert was granted that ruling for the plaintiffs would be a disaster for the Democratic Party and urban voters. I suppose that it is not surprising that rural dwellers would worried about their water rights because Texas is probably going to be deeply red for a long time.

      You can never get them to admit it but the GOP and rural areas do have looming electoral disasters. They have insulated themselves in various ways but the truth is that the United States is growing less white and more diverse. Current GOP antics do seem to be turning off many Millennials. The cities might not be quite growing but it is clear the rural areas are dying. Rural areas are simply fighting for ways of life that are unsustainable and trying to institute policies that would benefit them against the suburban and urban majorities.

      That being said, the Supreme Court ruling would affect the nation overall and that would have been a disaster for the Democratic Party.Report

    • [T]his is rural Republicans fighting for their future, in the form of water, against urban and suburban interests, both Democratic and Republican.
      Which adds a whole lot of understanding as to why it was this plaintiff pushing the idea. With that said, further to @saul-degraw ‘s note above, had the plaintiff succeeded, it would have added a significant tool to the arsenal of Republican strategists tinkering with the rules of democracy to build in advantages to their party. (Whether you think this is a good thing, a bad thing, or just one of those things, it’s obviously a thing.)Report

      • Saul Degraw in reply to Burt Likko says:

        I think it is important to note that there was also a non-profit behind the litigation called the Project on Fair Representation. Someone else pointed out that Orwell would love to have come up with this name. The same organization is also behind the cases trying to end affirmative action at the University of Texas-Austin. Maybe Ms. Evenwel cares mainly about water rights but I can’t help that this was another attempt to fish the liberals and the Democratic Vote from the right-wing Project on Fair Representation.Report

    • DavidTC in reply to Michael Cain says:

      And I think that I predicted then that the Court would say “yes”, because the four liberal justices would go that way and Roberts at least, with an eye on how “his” Court will be viewed by the historians, wasn’t about to vote to toss the one constraint that is used for districting in all 50 states.

      Yeah, that’s how it seemed to me, also. The idea that the court would *disallow* using total population is very nearly insane, considering that is how every single state has done it for decades, and is how the House of Representatives works.

      Incidentally, has anyone noticed how weirdly this *could* have backfired? What if the Surpremes said that states not only must allocate districts based actual voters, but *the House of Representatives must be recalculated also* based on that?

      I’m not sure of *exactly* how that plays out, it’s pretty hard to find out where states stand in ‘people who vote vs total population’. All the stats seem to be ‘percentage of eligable voters’, but that completely ignores felons and immigrants and children, all of which would be subtracted.

      But what I *can* promise would happen is that California and New York and other Democratic states run around like madmen getting more people to vote. And it also means in places where there is large population growth, but that population growth is either immigrants who can’t vote,or young people, suddenly all of them stop counting towards the population…and most of *those* states are red states. (California would also be hard hit on that one.)

      Hilariously, I’ve actually argued that representation in Congress *should* be proportional to the amount of voters, for exactly that reason. Now states not only have to stop voter suppression, but they have a large incentive to make the vote as easy as possible, and even allow felons to vote. (1) Hell, perhaps some states would lower the voting age to 17 or 16(2). This completely falls apart *inside* states, however, where the state government would *love* if the same people they were trying to suppress the votes of got less representation!

      1) Denying felons the right to vote is one of those things we’re so used to that we’ve never noticed it is *completely undemocratic* and cannot slightly be justified. Criminals lose specific rights to protect others from harm, but *voting* cannot cause harm. The only possible reason they should lose the right to vote is if they commit voter fraud in a way that renders their vote unable to be trusted, aka, if they are convicted of selling their vote. That should basically be the one crime that disallows them from voting.

      2) I have no idea if this is a good or bad thing, though. Teenagers make decisions based on stupid things, yes, but *so do most voters*.Report