Supreme Court Delivers 2 Major 5-4 Decisions

Jun 27, 2019
Originally published on June 27, 2019 6:10 pm
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ARI SHAPIRO, HOST:

Today was a big day at the U.S. Supreme Court with two major 5-4 decisions. In one, the court slammed the door shut on challenges to partisan gerrymandering, no matter how extreme. In the other, the court blocked the Trump administration from adding a citizenship question to the 2020 census. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: Chief Justice John Roberts was the major player in both cases, writing for the court's conservatives in the gerrymandering case. Roberts did nothing to sugarcoat the naked partisan grab for power that both parties engaged in in cases from Republican-controlled North Carolina and Democratic-controlled Maryland. In North Carolina, as the chief justice observed, voters are split about equally between Republicans and Democrats. But the Republican-controlled legislature drew congressional district lines to ensure that 10 Republicans were elected to the U.S. House of Representatives and just three Democrats.

Despite this state of affairs in these states and others, Roberts said the court should not police such political questions. The courts, he said, can take race out of politics because the 14th Amendment requires it. But the Constitution doesn't say anything about eliminating partisanship from a partisan process. To ask the court to intervene in such cases is to ask for an unprecedented expansion of judicial power, he said, adding that it would be next to impossible to determine how much partisanship is too much. There are no standards in the Constitution for doing that, he said. And there is no good way to do it.

For Republican election and redistricting lawyer Jason Torchinsky, the decision was...

JASON TORCHINSKY: Good news for preserving the status quo.

TOTENBERG: NYU law professor Richard Pildes, one of the lawyers for Common Cause in the North Carolina case, agrees.

RICHARD PILDES: Right now, legislators think it's the Wild West, and they're free to manipulate the way they draw districts and to rig the process to whatever extreme they want.

TOTENBERG: In a rare oral dissent on the bench today, Justice Elena Kagan disputed Chief Justice Roberts' claim that the courts are unable to determine how much partisanship is too much. She said the lower courts here did just that - they looked at the evidence and could reach only one conclusion. By purposefully and substantially diluting the votes of citizens favoring their opponents, the politicians of one party had succeeded in entrenching themselves in office. She said that the politicians, quote, "beat democracy." When faced with such constitutional wrongs, courts must intervene, she said, her voice portraying a note of desperation.

Of all times to abandon the court's duty, this was not the one. These practices imperil our system of government, she said. Her voice trembling slightly, Kagan concluded - with respect but deep sadness, Justices Ginsburg, Breyer, Sotomayor and I dissent. The court's decision puts an end to partisan gerrymandering challenges in the federal courts. Here's Richard Hasen of the University of California, Irvine.

RICHARD HASEN: There is no path in the federal courts to hear these cases. And what that's going to mean in the American South is that there's going to be a lot of fighting over whether the drawing of district lines to help Republicans is being done on partisan grounds or racial grounds.

TOTENBERG: Redistricting experts expect partisan gerrymandering objectors to move their complaints to the state courts in some cases. And increasingly, voters are trying to get referenda on the ballot to set up independent redistricting commissions. Five states approved such measures in 2018 in addition to existing independent commissions in California, five other states and a system that's set to go into effect in New York in 2020.

While Roberts led the conservatives in the partisan gerrymandering case, he flipped to the liberal side on the Trump administration's attempt to add a citizenship question to the 2020 census. In 2017, Commerce Secretary Wilbur Ross ordered the question added, disregarding the unanimous advice of top Census Bureau experts who warned that adding the question would scare off people in immigrant households and lead to a significant undercount. Ross maintained that the information was needed for voting rights enforcement, but the chief justice couldn't swallow that explanation.

The evidence in the record, he said, shows that explanation to be a pretext - in other words, a sham. Accepting this, quote, "contrived justification," he said, would require the court to demonstrate a naivete from which ordinary citizens are free. President Trump tweeted his displeasure at the decision, saying he was having his lawyers look at delaying the census to add the question no matter how long it takes to get it back in front of the Supreme Court.

But the Trump administration has all year told the court that it needed to speed up consideration of the case. It needed an answer, the administration said, because the deadline for printing the census forms is this coming Monday. And as former deputy Census Director Ken Prewitt put it today...

KENNETH PREWITT: There is no flexibility in the schedule right now. They've cut it very close.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.