Initial thoughts on Gill v. Whitford, the Wisconsin Gerrymandering Case

The US Supreme published its long-awaited decision in the Wisconsin gerrymandering case, Gill v. Whitford.  Gill could have been a landmark decision about American Democracy.  But the Court declined the invitation and sent the case back to the lower court to give plaintiffs the chance "to prove concrete and particularized injuries using evidence . . .  that would tend to demonstrate a burden on their individual votes."  The decision is baffling for many reasons.

First is the Court's use of history.  The opinion takes us back in time, to the 1960's and Baker v. Carr through the 2000's and recent gerrymandering cases that have refused to settle this question.  The Court concludes from this history that a legal standard is neither obvious nor preordained  by the Constitution.  But this history offers a more important lesson.  The one person, one vote standard, while maybe obvious as a matter of public opinion, was not demanded by the Constitution either.  Reynolds v. Sims picked that standard out of a hat, and then enforced it across the nation.  And here's the thing: the response by the public and affected actors alike was nothing short of astounding.  And in the process, the Court's public esteem grew.  There is no reason to suggest that history won't repeat itself.

Second is the Court's puzzling passivity in the face of a problem it has confronted before.  In Gill, the Court remands the case to the lower court due to a lack of standing.  To the Court, the plaintiffs have yet to show that they are individually harmed by the Wisconsin plan.   Standing scholars will no doubt have much to say about this.  But Gill is not new, nor terribly complex.  Again, a dose of history goes a long way.

Before 1961, the Court refused to decide these questions and hid behind the "political question" doctrine and the apparent "lack of judicially manageable standards."  Baker v. Carr changed all that by the mere invocation of equal protection principles.  The Court only needed to posit that "[j]udicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if, on the particular facts, they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." It was that simple.  Mere words did the trick.

A few years later, in Reynolds v. Sims, the Court went further and imposed a standard of population equality.  This meant that all districts must have the same number of people.  But the "intelligent man" on the Court new better.  As Justice Harlan wrote in dissent,

Stripped of aphorisms, the Court's argument boils down to the assertion that appellees' right to vote has been invidiously "debased" or "diluted" by systems of apportionment which entitle them to vote for fewer legislators than other voters, an assertion which is tied to the Equal Protection Clause only by the constitutionally frail tautology that "equal" means "equal."

"One person, one vote" was not required, much less demanded, by the 14th Amendment.  But it soon became the law of the land.  And the country embraced it.

This is important for what it did to the political question doctrine. The doctrine was part and parcel of the Court's passive virtues, ways to relief pressures not of the Court's own making.  But Baker domesticated the doctrine. It brought within law an inquiry that served prudential goals. It demanded reasons for an inquiry designed to operate outside legal doctrine.  But that did not mean that there was no longer a need for the political question doctrine.  The Court must still have a way to rid itself of cases when prudence demanded it without giving the impression of fear and powerlessness.  And it settled on standing doctrine.

The conservatives on the Court want to return to the political question world that Baker left behind, a world where "judicially manageable standards" are unavailing.  They also do not wish to overturn Baker, so they must walk a very thin tightrope.  For proof, take a quick look at Vieth v. Jubelirer, the 2004 Pennsylvania gerrymandering case, to appreciate how hard Justice Scalia had to work to dismiss any and all standards offered by plaintiffs, social scientists, and dissenting justices alike.  The conservative justices do not want any part of this, but they also don't want to concede any judicial ground, lest the "intelligent man on the street" come to think of them as weak or unprincipled.  Hence the need for the passive virtues.  Hence the need, that is, for standing doctrine.

Viewing Gill through this lens raises many questions.  Why does a unanimous opinion invoke standing doctrine and remands the case to the lower court to see if these plaintiffs are sufficiently harmed under standing doctrine?  Why not simply dismiss the case on standing grounds, as Justice Thomas argues?  More generally, why not simply invoke a lack of standards once and for all, rather than continue moving the issue forward?  Why the apparent need for prudence and the passive virtues here? What troubles the conservative justices in this area?

Gerrymandering cases are not different from any others.  So what in the world is going on, Justice Kennedy?  What are you afraid of?

[Cross posted from Race and Democracy]

Betsy DeVos and the Fight of our Lives

“The greatest success of the Freedmen’s Bureau,” wrote W. E. B. Du Bois in 1901, “lay in the planting of the free school among Negroes, and the idea of free elementary education among all classes in the South.” This was a key moment in the history of the United States, a time when the country wrestled with the meaning of freedom once slavery formally ended in 1865.  To President Andrew Johnson, freedom was simply the absence of chains, nothing more.  To Republicans in Congress, however, freedom meant much more.  Critically for us today, freedom for the African American community after the Civil War meant to be literate, that is, “the ability to get an education.” 

But the South would not take the success of these Freedmen’s schools lightly.  Again, Dubois:

The opposition to Negro education was bitter in the South, for the South believed an educated Negro to be a dangerous Negro. And the South was not wholly wrong; for education among all kinds of men always has had, and always will have, an element of danger and revolution, of dissatisfaction and discontent. Nevertheless, men strive to know. It was some inkling of this paradox, even in the unquiet days of the Bureau, that allayed an opposition to human training, which still to-day lies smouldering, but not flaming.

Education can be revolutionary, dangerous, yet a central aspect of our freedom.  Hence the status quo opposes it. This is the reason why Freedmen’s Bureau agents were under constant threat of private violence.  This is also why the Klan targeted Freedmen’s schools.   And this is why, during the Civil Rights Movement, Freedom Summer in 1964 featured Freedom Schools, which sought to empower K-12 students to become active and engaged citizens.

This history flashes in front of my eyes as I think about the fight over the nomination of Betsy DeVos for Secretary of Education.  

This might be the fight of our lives.  Much can be said about DeVos’ lack of qualifications for the position she now holds, or the obscene amounts of money she spent in order to further her cause, or how much money she gave members of Congress who then voted on her nomination.  One can also debate the fact that Secretary DeVos “wants to use America’s schools to build ‘God’s Kingdom.’”

In today’s New York Times, Ross Douthat buys none of this.  He cannot understand why so much effort and angst was placed on the DeVos nomination.  After all, he writes, “we have an education secretary who perhaps errs a little too much on the side of choice-as-panacea, overseeing (with limited powers) an American education bureaucracy that pretty obviously errs the other way.”  Striking the right balance between these competing sides is key.  But as an empirical matter, he cannot understand why the nomination deserved the level of political controversy that it received. So how does he make sense of it?  In the end, it wasn’t all that hard.  It was those pesky unions, liberal bastions of old school bureaucratic waste; it was those pesky suburbanites, who love their public schools; and it was an “older culture-war bogeymen:” fears of “a looming theocracy.”

This is nonsense.  The fight over the DeVos nomination is not a new fight.  This is a fight at the heart of the meaning of American citizenship.  This was true in 1865.  This was true in 1964.  This is true today.

When you think about Secretary DeVos, remember DuBois: "men strive to know."  Back in 1901, DuBois could write that "opposition to human training lies smouldering, but not flaming."  The fight over the nomination of Betsy DeVos makes clear that the fight is not only flaming today, but ablaze.