In the plangent peroration of his dissent in United States v. Windsor, Justice Antonin Scalia bemoaned the Supreme Court’s ruling in favor of marriage equality. The justices had shortchanged democracy, he lamented: “We might have let the People decide.” But as it turns out, Scalia isn’t so fond of letting “the People decide” when those people decide to do something that actually strengthens democracy—like, for instance, drawing fair boundaries for congressional districts. Scalia may not see a constitutional right to marriage, but he definitely sees a constitutional right for partisan state legislatures to entrench their ruling parties’ power to the detriment of democracy. And after arguments on Monday, it seems likely that Scalia’s view will soon become the law of the land.
Here are the basic facts behind Monday’s case, Arizona State Legislature v. Arizona Independent Redistricting Commission. In 2000, Arizona voters approved a ballot initiative, Proposition 106, that took congressional redistricting out of the state legislature’s hands. For decades the controlling party in the statehouse had used redistricting to put members of its own party in the House of Representatives through partisan gerrymandering. Under Proposition 106, the task of redistricting was put entirely in the hands of an independent commission. The system has worked remarkably well: Thanks to the commission’s redistricting efforts, Arizona’s House seats are consistently competitive.
Now the Republican-dominated Arizona legislature wants to stop that. Conservative legislators claim that the independent commission is illegal under Article I, Section 4 of the federal Constitution, which reads, in part: “The times, places and manner of holding elections for … Representatives, shall be prescribed in each state by the legislature thereof.” When the Constitution says “legislature,” these legislators say, it’s talking about them, the elected lawmakers. And any law that affects the “manner of holding elections” for House members without input from the state legislature must be struck down as unconstitutional.
But Arizona’s transparently self-interested legislators have a problem. When the Constitution was written, its framers had no concept of initiatives and referenda, which have since become a vital part of the democratic process on the state level. To keep the Constitution relevant and logical, the Supreme Court has repeatedly held that “legislature” actually means legislative power and legislative process—which can, of course, be exercised by the people through direct democracy.
When Paul Clement approaches the podium Monday morning to represent the Arizona Legislature, he appears eager to wriggle around those precedents, giving the justices a shot at Chief Justice John Roberts’ favorite type of ruling: a seemingly narrow decision that later blossoms into a conservative rout. As the transcripts show, Clement is peddling a compromise, arguing that voters can have some say over elections, but that the legislature must maintain “residual authority” and can’t be “cut out completely.”
So, Justice Anthony Kennedy wonders, what does “cut out completely” mean? “What about voter ID laws, what about absentee ballots and so forth that are provisions enacted by referendum?”
“I think it might depend on the details a little bit,” Clement avers, sensing an incoming fusillade of voter ID questions. But Kennedy backs off, and throughout the rest of the hour he gives Clement a pass and scuttles to the right to attack the independent commission.
“Well, Mr. Clement, how about that?” Justice Elena Kagan says, merrily firing the next shot. “I thought that the legislature was completely cut out as to most of those things.” Voter ID laws, mail-in voting initiatives—“I mean, there are zillions of these laws” that affect elections with no legislative input. If “legislature means legislature,” shouldn’t these “many, many, many laws” be struck down, too?
Clement dodges Kagan’s logic, drawing a rather ridiculous line in the sand. The problem with Proposition 106, he explains, isn’t just that it took redistricting away from the legislature; the problem is that it did so permanently. A voter ID law that doesn’t bar the legislature from one day altering it is OK. An anti-gerrymandering law that explicitly cuts out the legislature is invalid.
Kagan lights into the contorted logic. What if, she asks, the commission had veto power over redistricting maps drawn up by the legislature? Clement picks nits: “Is it a veto that can be overridden or is it just a permanent veto?” If it’s a permanent veto, he decides, it’s unconstitutional. If not … well, that’s another case for another day. Kagan sees flashes of a grim future: “So this is what we’re going to have to do for every time” voters approve an independent commission? Measure out the power retained by the legislature teaspoon by teaspoon?
Justice Sonia Sotomayor interrupts to ask why Clement wants the Supreme Court to meddle with the commission at all. If “legislature” means “the legislative process,” she asks, “isn’t that just simple?” Sotomayor, like Kagan, sees a nightmarish future in which every state legislature sues any commission that takes a teaspoon of power away from it. Let the people have the power to legislate, and “we never have to worry about how the states experiment, what they do in their own self-governance.”
This sort of populist, states’ rights argument should be hugely appealing to conservatives. But as soon as Seth Waxman opens his mouth to defend the independent commission, it appears the court’s conservatives appreciate the will of the voters only when the voters are doing something they like, such as banning affirmative action. Waxman attempts to explain why “legislature” means the legislative power in a state, but Justice Antonin Scalia quickly stops him.
“Give me one provision of the Constitution,” Scalia bellows, “that uses the term ‘legislature’ that clearly was not meant to apply to the body that—of representatives of the people that—that makes the laws.”
Waxman begins to reply, but Scalia cuts him off curtly, snapping, “I can’t find a single one.” Waxman tries again, appealing to Scalia’s famous originalist philosophy: Founding-era dictionaries defined “legislature” as a broad term encompassing “the Authority of making laws, or Power which makes them.” (All credit to the Brennan Center for Justice for digging up these old definitions in an amazingly well-argued brief.) Then comes the second-most vexing moment of the day, as Scalia counters: “You’ve plucked that out of—out of a couple of dictionaries.” This claim is pretty galling coming from a man who infamously shops around for arcane definitions from antiquated dictionaries that allow him to reach his desired outcome.
But Scalia’s self-awareness has not yet reached its low point. When Waxman argues that Arizona voters’ exercise in direct democracy qualifies as an act of legislative power, Scalia tears into him: “What we have here is not a higher level of democracy. It’s—it’s giving power to an unelected body of five people.” The justice says these words with no sense of irony or recognition that he is about to join a five-justice majority to strike down a democratically enacted law designed to promote democracy.
As arguments drag on, Roberts and Justice Samuel Alito tag-team to pummel Waxman about the definition of “legislature,” while the court’s resident Chaos Muppet, Justice Stephen Breyer, sounds extremely confused about what Waxman is actually arguing. Clement returns for a brief rebuttal and receives another lecture from Kagan about the “need to show a lot of respect to the state’s own decisions about how legislative power ought to be exercised.”
But it’s clear by the end of the hour that the states’ rights reasoning won’t cut it with the court’s archconservatives. As arguments draw to a close, the liberals sound angry with the Arizona Legislature, the conservatives sound angry with the Arizona commission, and Breyer sounds like he’s not sure what’s going on.
Given the tenor of the arguments, the court’s Republican appointees look poised to invalidate the state’s commission and let the legislature gerrymander Democrats into obsolescence. As election law expert Rick Hasen notes, that’ll be a shame—not just for Arizona, but for election reformers around the country who see independent redistricting as their best hope. California’s hugely successful commission, which actually made congressional elections more competitive for Republicans, will likely fall with Arizona’s. Hawaii, Idaho, Montana, New Jersey, and Washington’s semi-independent commissions could also be on the chopping block. In each state voters exercised their legislative authority to make elections cleaner, fairer, and more democratic. Now, five members of the Supreme Court look ready to send these voters a blunt message: Our votes count more than yours.