Arizona Supreme Court decision: Redistricting ruling undermines Bush v. Gore.

Mindlessly Literal Language Loses Again at the Supreme Court

Mindlessly Literal Language Loses Again at the Supreme Court

The law, lawyers, and the court.
June 29 2015 2:57 PM

Mindlessly Literal Reading Loses Again

This Supreme Court decision is a dig at Bush v. Gore.

Bush and Gore supporters argue their point to each other in fron
George W. Bush and Al Gore supporters argue with each other in front of the U.S. Supreme Court building on Dec. 11, 2000.

Photo by Mark Wilson/Newsmakers

The Supreme Court ended its term Monday with another major rejection of conservative attempts to use wooden, textualist arguments to upset sensible policies. The result in Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the use of independent commissions to draw Arizona’s congressional districts, is a big win for election reformers and supporters of direct democracy. The Arizona decision also undermines the strongest conservative argument in favor of George W. Bush in Bush v. Gore, the case that handed him the 2000 presidential election.

Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

But while Roberts was willing to be less than literal in the Obamacare case in order to further the obvious purposes of the statute, he was not so flexible in the Arizona case. At issue in Arizona was whether Arizona voters could take away the power to draw congressional districts from the self-interested and partisan Arizona Legislature and put it in the hands of an independent redistricting commission. The Constitution’s Elections Clause vests in each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override. In some earlier cases, the Supreme Court had rejected narrow readings of the word legislature, for example by letting the people use a referendum to review congressional redistricting plans from a legislature. Roberts said today that cutting the legislature out entirely violated the Constitution. “What chumps!” he declared sarcastically of those who believed the word legislature should be interpreted literally.

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But the majority, in an opinion by Justice Ruth Bader Ginsburg joined by the court’s other liberals and Justice Anthony Kennedy, rejected Roberts’ narrow reading. Ginsburg said the purpose of the Elections Clause was to make sure that Congress could override state legislatures if they were too self-interested; the purpose was not to empower legislatures over their own people. And she wrote that the initiative provides an important way for voters to deal with partisan gerrymandering and other problems where legislators pass rules to benefit themselves and their parties rather than the democratic process as a whole. The ruling was especially important because the court, thanks to the vote of Kennedy, won’t directly police partisan gerrymandering.

Kennedy joined in this decision likely in large part because of his experience as a native of California, where he had seen the initiative process work to bypass legislative self-interest. His endorsement came as somewhat of a surprise because he seemed to be attracted to the textualist argument at oral argument. Likely by the time of writing the decision, he realized that a narrow textualist ruling would be a disaster for the democratic process.

Voters have passed measures affecting not just redistricting but also primaries and lots of other election law rules. Indeed, Ginsburg noted that if the dissenters had prevailed, then even state constitutions guaranteeing voting rights could be subject to challenge because constitutional amendments are passed by voters and are not simply enacted by a state legislature. Had Roberts prevailed, it would have been terrible news for those who believe that sometimes the best election reforms happen when the people can choose democratic rules for themselves.

Roberts was not even entirely consistent as a textualist. He was willing to allow state governors and voters to have a say in the process, as long as the legislature had some input. Maybe he took that view because of earlier precedents. Even so, his literalism was not all that literal.

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The Arizona dispute over the term legislature harkened back to one of the most important election disputes in American history, the 2000 fight in Bush v. Gore over whether to conduct a recount of Florida ballots. The Supreme Court held that the set of recounts and other election changes ordered by the Florida Supreme Court violated George W. Bush’s Equal Protection rights. The court, on a 5–4 vote, stopped the counting and Bush was declared the presidential winner. Justices Kennedy and Sandra Day O’Connor are widely thought to be the authors of the unsigned Bush v. Gore majority opinion. Its Equal Protection rationale was an expansion of Equal Protection law that remains controversial to this day.

Conservatives who defend the court’s decision to end the counting usually point not to the unsigned majority opinion, which expanded Equal Protection rights but to a concurrence written by Chief Justice William Rehnquist and joined by Justices Antonin Scalia and Clarence Thomas. That concurrence argued that when the Florida Supreme Court set up rules for the recount, it usurped the power given in the Constitution’s Article II to the state “Legislature” to set the rules for conducting presidential elections, a provision parallel to the Elections Clause argument at issue in this week’s Arizona case.

No one in the Arizona case cited Bush v. Gore (and it has never been cited in a majority opinion since it was decided in 2000), but the decision is an implicit dig at the Rehnquist concurrence. The idea that we would read legislature in the Constitution to prevent a state supreme court from even interpreting the meaning and scope of legislative election statutes was ludicrous in 2000, just as it is today. Mindless literalist interpretations in the service of conservative causes are nothing new, but they can be quite pernicious. 

In this week’s Arizona decision, as in last week’s King case, sometimes there is a (bare) majority on the Supreme Court willing to think about the real-world implications of its decisions as it interprets the Constitution and major federal statutes. Fortunately for voters, Kennedy made the crucial decision to join the court’s liberals in rejecting textualism and allowing for just a little less partisanship in our election procedures.