This is Conservative Legal Movement Week at the Supreme Court. (Okay, even more so than most weeks.) Things really get going tomorrow, when the court will hear argument in two legislative-redistricting cases at the behest of (surprise!) Conservative Legal Movement voters represented by Conservative Legal Movement lawyers whose names on a petition for review (a “petition for certiorari”) guarantee that five justices will read the petition. (All but one is a member of the usual-suspect crowd; the other one is a St. Louis-based lawyer I’ve never heard of, but presumably is active in Republican election-law circles.)
Things get going today with a state-sovereignty case, but this case is peanuts—just a small appetizer—compared with what will come tomorrow. The first one tomorrow, Harris v. Arizona Independent Redistricting Commission, is the one that will be argued by the St. Louis lawyer. You can read about it here. It is, best as I can tell—and I make no claim whatsoever to expertise in election law—by far the less far-reaching of the two redistricting cases, and because an outcome favorable to the petitioners, it seems to me, might not be an unalloyed long-term (or even short-term) victory for Republican candidates, an outcome in favor of the petitioners may not be in the bag.
Not so for the effects of a victory for the petitioners in Evenwel v. Abbott, Governor of Texas, the second case to be argued tomorrow. Its purpose is to have the Supreme Court declare that legislative districts, federal and state, must be apportioned according to the number of eligible voters in each district, rather than the number of residents in each district as indicated by the Census. So minors, recent immigrants or immigrants who have not yet gone through the naturalization process, convicted felons, and elderly Blacks who cannot produce a birth certificate from Nowhere County, Mississippi, will lose their status as legal constituents of the policymakers formerly known as their congressional or state legislative representative.
Which presumably would permit them to stop paying taxes, including sales taxes, since, y’know, the founders would be upset at the idea of taxation without representation.
This is outright crazy. But it also in right in line with John Roberts’ own recent, surprising public statement about what his modus operandi is in joining with his four Reagan-era Conservative Legal Movement colleagues to make dramatic changes in broad areas of law: quiet.
As in, speak very softly and drive an armored vehicle (i.e., cases in obscure areas of election law and procedural and jurisdictional law the public has no clue exist) through the Democratic Party; labor unions; civil rights plaintiffs of the sort that benefited from the original purpose the Court stated for its “strict scrutiny” equal protection pronouncements that the Court now regularly disavows without actually mentioning that it is doing so (more about this, maybe, in a follow-up post about Wednesday’s argument at the court); civil rights plaintiffs who are challenging state and local authorities’ bald and routine violations of even the most obvious and fundamental civil and human rights; and ordinary consumers. (Ordinary is a careful selected term or art here, but I won’t elaborate in this post.)
Roberts and his compadres have, since the ’80s, had a list of perhaps 10 areas of law that they they are hellbent on using the Supreme Court and the lower federal courts to rewrite. It is the Federalist Society’s unabashed agenda. But always—first, foremost and forever—their priority is using the Supreme Court to try to orchestrate a permanent Republican majority across the full breadth of elective office: the presidency, both houses of Congress, state governorships, state legislatures, and various county and municipal offices. And Roberts, whose very essence is stealth, does not ever take is eye off that ball, even if his more intemperate or less skilled colleagues do. If Roberts miscalculates on whether or not the public will notice a momentous opinions replete with bizarre statements—Citizens United, for example, in 2010—it may be time two years later to uphold much but not all of the Obamacare statute, since that issue wasn’t an election-law case and ruling striking the ACT down did have the potential to inure to the benefit of Democrats in the 2012 election. Including to Obama.
So I guess I should add one more reason why the petitioners in Harris might lose: The opinion in Harris and the opinion in Evenwel will be released either on the same day or a day or two apart with Harris released first. Seeee, everyone? The Evenwel ruling wasn’t partisan. Got that?
A coup by any other name—Supreme Court capture of the electoral process, I guess, would be the name—smells as rotten.
The case argued on Wednesday—and it is the only case to be argued that day; usually the Court hears arguments in two cases on the very few days each year on which it hears arguments—Fisher v. University of Texas at Austin, is a standard-issue affirmative-action-in-public-universities case, although this case is back for its second turn at the Court.
I might write more about this later today or tomorrow in a follow-post (Conservative Legal Movement Week at the Supreme Court, Part II, I guess), but this case has a remarkable peculiar twist added only at the Supreme Court level—normally problematic procedurally, but, well, y’know …. This time around, aided by the suggestion of the dissenting judge (an aggressive, high-profile Conservative Legal Movement G.H.W. Bush appointee) on the lower appellate court panel that ruled in favor it the university and its admissions criteria, the petitioner, Abigail Fisher, a white graduate of a public high school in a wealthy Houston suburb, in claiming an affinity with African-American students who were admitted to the university.
It’s an insult to those students, she now claims. And since for several reasons, including that her grades and SAT score were not high enough to gain her admission even without the school’s use of race in any aspect of the admissions policy, and that she long ago now graduated from another university (a weaker problem than the first, in my opinion), she may otherwise lack legal “standing”—an actual live and particularized injury—to pursue the case, she wants to piggyback on the insult she suddenly says was perpetrated on the Black students under the university’s admissions system the year she applied and admits now under the same policy. She’s concerned about the university’s insult to the Black students they admit!
This is far more clever than her earlier piggybacking on Supreme Court petitioner Jennifer Gratz, the white salutatorian of her working-class suburban Detroit high school whose SAT score apparently wasn’t quite up to the par set by the children of more upscale folks, and who eventually won her case against the Supreme Court against the University of Michigan at Ann Arbor in 2003 (after she, too, had graduated from another university) in a case challenging not the university’s preference for the children of those who looked to be able to pay the tuition without financial assistance from the school or student loans, but instead the university’s racial affirmative action program. Because, well, that was the only civil rights avenue available to her–although once the original purpose of the “strict scrutiny” test for determining equal-protection lawsuits, as has now occurred, the automatic application of strict scrutiny to any equal protection claim based on race, but not to most other grounds for a claim of denial of equal protection, itself violates equal protection. I would think.
But on the piggybacking-on-the-insulting-the-Black-admittees’ ground, three of the current justices, and (I think) Roberts as a lawyer for the Bush folks (I think), did think George W. Bush had legal standing to invoke the voting rights of Florida Republican voters whose votes would be diluted if all those ballots with hanging or pregnant chads used by Democrats in counties and precincts that hadn’t cleaned their punch-card equipment since the Civil War were counted. Now, I’ll grant that the Bush v. Gore opinion did limit its ruling to that case only. But there are other Republicans in need of such a courtesy from the Court, too, and Abigail Fisher seems to be one of them. “Standing” on that ground is probably in the bag for Fisher.