Thoughts after Thursday’s highly partisan Supreme Court ruling on gerrymandering.
Republican Supreme Court justices are from Mars, or are pretending to be. I guess the question is whether they are supposed to pretend to be.
Gerrymandering is wrong, morally wrong and an obvious violation of important moral and ethical principles of how a democracy should be organized and run. This is obvious on an earthly level, on a level of human justice as currently evolved homo sapiens are able to understand concepts like fairness and justice. But on a Martian level, perhaps not. Probably not. We’d be guessing if we tried to figure out what “fairness” means on Mars.
This may sound sarcastic, but it isn’t. This is very serious, and dangerous, and a threat to the common understanding of what it means to be a 21st-century democracy operating under an 18th-century Constitution.
I’m not a legal scholar. I do know an above-average amount about the Constitution, having studied it and written about it over the years, including a couple of books. In 1987, the bicentennial of the Constitutional Convention, I wrote a series for the Star Tribune that became a book called “Our Constitution: The Myth That Binds Us,” and later I wrote an online book of constitutional columns for MinnPost that are still available as an ebook on Amazon, titled “Imperfect Union: The Constitutional Roots of the Mess We’re In.”
The Constitution is a document. A text. But that’s not what binds us together as Americans. It’s the myth of the Constitution that binds us. The myth is that the Constitution is brilliant, fair, balanced, bordering on perfect, and that in its perfection it is the foundation of America’s rise to greatness and makes American democracy the light unto the world. It is the bible of the religion of American self-worship. And like any bible, it’s out-of-date and highly flawed and the devil can cite it for his purposes.
For the time in which it was written, the Constitution was near-perfect, and very likely the best version of a system of government that could have been written in the 1780s and ratified in the states by the decision-makers of that time (almost all white, male landowners, by the way).
The Constitution invented Congress, including the U.S. House of Representatives, which was its most democratic element. In fact, it was the only element of the new national government that would be elected by the (white, male, land-owning) people. The Senate would be elected by the state legislatures, the president by the Electoral College. Justices on the Supreme Court — appointed by the indirectly elected president and confirmed by the indirectly elected Senate — would serve life terms, rendering them even further beyond the reach of the governed. Only one of those features has been changed by actual amendment (the direct election of senators.)
But the Constitution says not a word about how the states were to draw the boundaries of the House districts. Gerrymandering is such an ancient tradition, it dates from the tortured Massachusetts district drawn by Gov. Elbridge Gerry, who actually attended the Constitutional Convention (although he opposed the final draft).
The actual Constitution also does not say that the Supreme Court is empowered to strike down acts of Congress, and there’s little evidence that this power was intended. The early Supreme Court made a power grab, in the famed Marbury v. Madison case, and got away with it. And now, without benefit of any constitutional amendment, the Supreme Court holds the power to overrule Congress.
Now let me apply all of this to what happened on Thursday. By a totally partisan 5-4 majority, the Supreme Court decided that the Constitution doesn’t require that congressional boundaries be drawn fairly. As long as the districts have equal populations, they can be drawn unfairly — gerrymandered — to the partisan advantage of whichever party has control over the drawing of the district maps, the court ruled.
It happened, just happened, to be a case of five Republican justices finding this to be the case about a blatantly gerrymandered congressional map in North Carolina that was, without any question or doubt, designed to maximize the yield of Republicans in the North Carolina delegation to a number far greater than the overall support for Republicans in the overall population of the state. With modern tools, this can be done quite efficiently and fairly openly.
From yesterday’s New York Times coverage of the North Carolina case:
The state’s congressional delegation, in a purple state in which neither party had a distinct edge, was at the time made up of 10 Republicans and three Democrats. A key goal, lawmakers said, was “to maintain the current partisan makeup of North Carolina’s congressional delegation.”
“I think electing Republicans is better than electing Democrats,” explained David Lewis, a Republican member of the General Assembly’s redistricting committee. “So I drew this map to help foster what I think is better for the country.”
Above, I called this “wrong, morally wrong and an obvious violation of important moral and ethical principles of how a democracy should be organized and run.” I stand by that.
I also understand that unelected justices are not supposed to interpose their values about what the laws should be, against the actions of elected legislators, like the North Carolina legislators who drew this map for partisan advantage.
I also note that all five of the justices who decided to leave the biased map in place were appointed by Republican presidents, including the current incumbent who makes little effort to disguise his view that Republican justices are expected to toe the party line. You can search the Constitution. You will not find any guidance in there about whether presidents are supposed to use their Supreme appointment powers to pack the court with justices who will vote the party line.
So if a Martian had just landed, and you tried to tell him why you are troubled by the pro-gerrymandering ruling, and the Martian asked you to show him what the Constitution says about how Supreme Court justices are supposed to decide a case like this, what would you show him?
I believe our system of “checks and balances,” which was always a bit overrated if push came to shove, is under the most extreme pressure in many generations, maybe ever. We have a president who doesn’t believe in checks and balances, who knows nothing about the Constitution, whose love of power is frightening, and who for reasons of convenience decided to pretend he is a Republican. We have a Republican Party that has decided to make whatever adjustments it needs to make to align itself with that president and his base, based in part of the belief that he will continue to pack the Supreme Court with reliable conservatives.
The best defense of what the Supreme Court justices ruled on gerrymandering is that they showed “judicial modesty,” which is a good thing. The justices aren’t supposed to ask, “What should the law be?” They aren’t supposed to ask “Is gerrymandering right or wrong?” They are supposed to ask, “What does the Constitution say?”
It doesn’t mention “gerrymandering.” It doesn’t even contain the word “democracy,” The closest it comes (Article Iv, Sec. 4) is: “The United States shall guarantee to every State in this Union a Republican Form of Government.”
They weren’t referring to the Republican Party, which wasn’t created until the 1850s.