Daily Planet, 2/2016
I’ve become a cheerleader for the United States Supreme Court. No pompoms, just a big S on my white sweater.
What has me in this mood? A hint:
In December, the North Carolina Supreme Court ruled that the gerrymandered legislative and congressional maps drawn by the Republicans in 2011 are just fine, thank you, and what’s all the fuss? The vote was 4-3, along party lines. A grievous, heinous outrage goes uncorrected by our local Supremes.
So…to the tune of “Buckle Down, Winsocki”…1-2, 1-2!
“Johnny Roberts, you will do what’s right,
Politicians got us in this awful plight,
Things are all mixed up, you can fix things up;
Your esteem picks up, if you will only do what’s right.”
Nah, you say? You think Justices decide cases on a Constitution treadmill?
Let’s take a stroll through Court history and see how big the Constitution has been in their decisions.
In the debate over ratification of the U.S. Constitution in 1788, some of those in opposition – obscure men because they lost the debate – wrote a series of articles.
One, written by a New York supreme court judge named Robert Yates (pseudonym “Brutus”), predicted that if Supreme Court Justices were independent, like in the Constitution, they would forget the Constitution and follow their own opinions. He wrote:
“They are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
In response (Federalist 78), Alexander Hamilton just blew smoke. He said the judiciary is the weakest branch because it has no army and no purse.
Whatever happened to Robert Yates later on, he was right in 1788.
The so-called “plain text” of the Constitution was never really plain. At best, justices have seen the Constitution through their own eyes. More accurately, they’ve ignored it and decided on other grounds.
In the Dred Scott decision, the slave-owning majority thought they’d settle the slave question once and for all. The Founding Fathers , they said, regarded Negroes as inferior, so that’s that. They expected universal acceptance. They got the Civil War.
Old-time laissez-faire Justices slapped down FDr’s New Deal in the ‘30s – until Justice Owen Roberts concluded that FDR’s big wins in 1934 and 1936 meant that America wanted FDR’s policies. He switched sides – not on the Constitution but what he saw as the right thing to do.
In Brown v. Board of Education, Chief Justice Earl Warren used a heavy hand, especially with Court conservatives, to muster a unanimous decision that school segregation was wrong – morally wrong.
Our current Chief Justice, John Roberts, voted in favor of the Affordable Care Act because he saw the law’s intent and result as something good: improved health care in America. And he didn’t want his Court to kill it.
Likewise, in the Court’s decision on gay marriage, Anthony Kennedy applied his own belief on homosexuality. He once wrote, “Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”
Now it would appear that the U.S. Supreme Court is poised to decide on gerrymandering. Their rulings last June point that way. But more important, abuse levels can’t be ignored.
North Carolina state law requires that districts cross county lines as little as possible. In 2011, the ethically-neutral GOP computers drew maps that split 50 counties and over 500 precincts to get sufficiently rigged elections.
Republicans took control of seven states in 2010 and then drew redistricting maps. In 2012 elections, Democrats got 16.4 million votes in those states, Republicans got 16.7 million, an even split. But Republicans elected 73 to Congress, Democrats elected 34.
The core evil of gerrymandering is conflict of interest. Politicians shouldn’t be allowed to draw the boundaries of their own districts.
The Supreme Court understands that Legislative and Executive branches are hopeless. If election fairness is to be restored, they know they must step in.
The Court will do it.