Category Archives: Courts

Gerrymandering

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The Supreme Court a few days ago ruled 6-3 that a US House districting map in South Carolina was not an illegal racial gerrymander but was an entirely legitimate political gerrymander and so beyond the reach of courts to intervene in. Political gerrymanders are entirely political matters and the sole province of a State’s legislature, the Court held.

Justice Elena Kagan wrote in dissent,

This Court has prohibited race-based gerrymanders for a reason. They divide citizens on racial lines to engineer the results of elections.

I suggest that Kagan has, by mistake, hit upon the larger problem that any gerrymandering creates. Political gerrymandering divides citizens on political lines explicitly to engineer the results of elections. How is that any more acceptable?

The idea of barring racial gerrymanders is to prevent the exclusion of racial minorities in a district from electing government representatives who will represent them.

Yet political gerrymanders, which set districts along purely political party lines, are a legitimate means of excluding political minorities, even major parties in a State’s legislative minority, in a district from electing government representatives who will represent those parties’ members.

How is that in any way different from racial gerrymanders? The group that’s in power is allowed, through gerrymandering, to perpetuate its power by permanently reducing the power of those not in power.

Better to draw House districts—or at least US House districts—as rectangles of substantially equal populations, without regard to race or politics.

The first article of the 14th Amendment of our Constitution includes this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….

Article I, Section 4, of our Constitution is this:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Congress has some (not absolute) authority over the States’ political decisions regarding the Regulations for holding elections, and that would seem to include districting rules.

Finally, surely among the privileges of an American citizen is the privilege—the right—to vote. Every voter should be on an equal footing with every other voter rather than some voters, by dint of their inclusion in a particular race or political bent, having political advantage over other voters. Disadvantaged voters most assuredly are seeing their voting privilege abridged.

In fine, either all American citizens are equal under law, or we are not.

“Resist the Prosecution but Obey the Court”

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Former Texas District Judge Robert Barton wrote that former President Donald Trump (R) is wrong to ignore the gag orders that the judge in his Manhattan trial had levied against him: there are legal processes by which Trump could seek redress.

Barton is correct as far as he goes.

However, it’s…foolish…to blindly obey—which he is not advocating—and there are other avenues along which to Resist the Prosecution, as the headline has it.

One of those avenues is to challenge the requirement with the immediate action of disobedience, whether statute or judicial order, and force the prosecutor or the judge promptly to defend and enforce the requirement. The challenge thus emphasizes the illegitimacy of the requirement, if such is the case, and gets it modified or tossed. Or the disobeyer sanctioned if he cannot prove that case.

This is the stuff of civil disobedience, and it often proceeds at a faster pace than the stately glacial pace of legal process. Often, too, time is of the essence.

Evidence Tampering

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Some potentially critical call records between Stormy Daniels’ former attorney and Michael Cohen were deleted rather than turned over to former President Donald Trump’s (R) defense team. This was testified to—under oath, mind you—by a paralegal, Jaden Jarmel-Schneider, in the office of Manhattan Attorney General Alvin Bragg, the very prosecutor prosecuting the case against Trump.

When asked about why some of the call records were removed, Jarmel-Schneider said: “My understanding is the decision was always going to be that we would admit the part of the call summaries related to what had come out in trial.”

That doesn’t sound like an accidental, if egregious, screwup. It sounds like deliberate evidence tampering.

That, by itself, should be grounds for dismissal with prejudice of Bragg’s case.

Testimony of a Perjurer

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Michael Cohen is on the stand this week in the trial of former President Donald Trump (R), testifying as a prosecution witness.

He is the only person likely to provide direct evidence that Trump himself ordered a coverup of a payment to porn star Stormy Daniels.

However,

Cohen also has plenty of baggage that could make jurors question his testimony. He is a convicted liar [and a] disbarred lawyer….

It’s hard to see how anything Cohen could say on the stand could be taken seriously without independently corroborating testimony or evidence. But if there were such testimony or evidence, Cohen wouldn’t need to testify in the first place; the prosecution would simply present that independent testimony or evidence.

Justice Breyer is Wrong Again

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Former Supreme Court Justice Stephen Breyer is out with a new book [emphasis in the title], Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview with The New York Times, he had this to say about originalism, textualism, and relatively newly appointed Justices.

Recently, major cases have come before the court while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.

Yeah, these Justices couldn’t possibly have developed their view over the years they’d spent on lower court benches, or practicing law, or clerking for other judges and Justices.

Then there’s his inherent position that judges and Justices build the law in the first place. Of course, they cannot, legitimately; they can only interpret and apply the law and our Constitution as they are written. Building the law is, under our Constitution, solely the province of our elected legislators in conjunction with the advice of our elected President (advice, because his veto can be overridden by those same legislators).

There’s this, too, from Breyer:

First, it requires judges to be historians—a role for which they may not be qualified—constantly searching historical sources for the “answer” where there often isn’t one there[.]

That’s an astonishing thing for a judge of any sort to say. Stare decisis—precedent—has history at its core as judges and Justices search out those precedents, their reasons for existing, and whether those reasons still apply or were applied correctly in the first place. Of course judges must be historians, at least regarding law and the politics that underlie a law’s creation.

Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound.

Whose definition of “practical consequences?” This, too, is a matter solely for the political branches, the Legislature and the Executive, along with We the People who elect them, to define. Such definitions are essential aspects of law building from which the structure of our government and the oaths of office our judges and Justices take explicitly bar those judges and Justices.

And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.

This, too, is far outside the authority of judges and Justices. They don’t get to define the ways in which our values as a society evolve nor do they get to alter our laws or our Constitution to align with their personal views of those values or their personal views of those values’ supposed evolution. Their authority is strictly limited, again, to applying the law and our Constitution as they are written.

So it is with our Constitution in particular, and that document evolves with society in a particular way: through Article V and its instruction on how to amend our Constitution.

All adjusting according to society’s evolution is the sole province of our elected legislatures and us citizens who elect them. The latter—us citizens—after all are the entirety of our society and the definers, in our aggregate, of what our society’s values are. Judges and Justices, as private citizens, certainly are part of our citizen population, but when they’re operating in their capacity as judges and Justices, they are not private citizens, but public employees who are bound to act within the law and our Constitution.

That, in turn, requires them—all together now—to apply the law and our Constitution as they are written. Justices who presume, in particular, to modify our Constitution from the bench, under the rationale, perhaps, that society’s values have changed from when those clauses and amendments were ratified, are explicitly violating their oath of office to support and defend our Constitution, not to alter it.