University of Arkansas 405.1 Litigation -- News Stories

This posting contains links to news stories regarding the litigation over University of Arkansas Board of Trustees Policy 405.1, the policy governing promotion, tenure, dismissal, and annual review.  As new stories become available, I will post links here, in reverse chronological order.

August 9, 2019 -- Gregory Borse -- To Protect Tenure, Conservatives Need to Ally with Progressives -- The James G. Martin Center for Academic Renewal -- available here and here.

July 12, 2019 -- Instapundit -- Arkansas vs Tenure -- available here (linking to the Martin Center piece below).

July 12, 2019 -- Arkansas Times -- UA Little Rock law professors decry loss of academic freedom in UA System -- available here (largely quoting from the Martin Center piece below).

July 12, 2019 -- Joshua M. Silverstein & Robert E. Steinbuch -- Professors Fight to Save Free Speech on Campus and Academic Freedom in Arkansas -- The James G. Martin Center for Academic Renewal -- available here and here.

July 5, 2019 -- 101.1 The Answer (KDXE)  -- The Dave Elswick Show -- Professor Rob Steinbuch, serving as guest host, interviewing Professor Josh Silverstein regarding the 405.1 litigation, available permanently here (download) and available temporarily here (listen) and here (listen) [the interview runs from 1:23:30 to 1:56:47).

June 26, 2019 -- The Fox News Channel -- Fox & Friends -- Professors sue university over new rules they say can revoke their tenure for not being nice enough (live television interview with the three named plaintiffs in the lawsuit) -- available here (view) or here (download).

June 20, 2019 -- The College Fix -- Professors could lose tenure under new rules because they aren't nice enough: lawsuit -- available here.

June 14, 2019 -- Foundation for Individual Rights in Education (FIRE) -- Faculty sue University of Arkansas System over new tenure policy -- available here.

June 7, 2019 -- Campus Reform -- Prof calls new tenure policy 'Mao-ist attack on free speech' -- available here.

June 3, 2019 -- ClassAction.org -- University of Arkansas Faculty Members Sue Over 'Controversial' Changes to Tenure Policy -- available here.

June 3, 2019 -- TaxProf Blog -- Lawsuit Challenges Changes to Arkansas Tenure Policy -- available here.

June 3, 2019 -- Inside Higher Ed -- Legal Challenge to Arkansas's New Tenure Policy -- available here.

June 1, 2019 -- Arkansas Times -- Lawsuit challenges University of Arkansas tenure policy -- available here.

June 1, 2019 -- Arkansas Democrat Gazette -- Suit targets changes to UA tenure policy -- available here.

May 31, 2019 -- Press Release regarding the filing of the lawsuit -- available here.

University of Arkansas 405.1 Litigation -- Court Filings

This posting contains links to documents relating to the litigation over University of Arkansas Board of Trustees Policy 405.1, the policy governing promotion, tenure, dismissal, and annual review.  As new documents become available, I will add links to this posting, in reverse chronological order.

Basic Case Information: The name of the case is Palade et al v. Board of Trustees of the University of Arkansas System.  The case was filed in the United States District Court for the Eastern District of Arkansas.  The case number is 4:19-cv-00379-JM.

Reply in Support of Motion to Dismiss -- Defendants/UA System -- available here.  September 18, 2019.

Response to Motion to Dismiss -- Plaintiffs -- disputing the motion to dismiss -- available here.  September 6, 2019.

Motion to Dismiss -- Defendants/UA System -- seeking to have the case thrown out -- available here.  July 16, 2019.

Complaint -- Plaintiffs -- the document initiating the lawsuit -- available here.  May 31, 2019.

Brief Thoughts on Obergefell, the Same-Sex Marriage Case (JUNE 26, 2015)

ORIGINALLY POSTED ON MY OTHER BLOG ON JUNE 26, 2015

I don’t have time right now for a comprehensive analysis like with the Obamacare case.  So here are some quick thoughts and I may follow up with more details at a later time.

1.  I agree with the result.  I think the Constitution does protect a right to same-sex marriage.  And I think the result in this case is the natural extension of existing precedent.  There were multiple analytical bases to get to this result, all of which I find persuasive.

2.  However, I think the issue is a close call.  Thus, a 5-4 result is both unsurprising and justified.  In my view, the majority is correct, but by a small margin.  The dissenters are on very firm ground in disagreeing with the result, and even firmer ground in raising concerns about Kennedy’s  interpretive methodology.

3.  Kennedy has become quite a master at the use of sweeping language.  Much of what he wrote is beautiful.  But beauty needs to be backed up with analytical rigor.  And in the latter department, Kennedy’s opinions is lacking.  Not like in Lawrence v. Texas (the 2003 sodomy case), but it is still too all-over-the place.  In addition, Kennedy appears to have finalized his rejection of the long-established framework for addressing due process and equal protection issues (at least in “family privacy” cases).  I wish he had been more explicit about the fact that he was doing so.  

4.  Roberts’s dissent is very solid.  He is a terrific writer.  And much of his analysis is excellent (though he does overstate the case in a number of places).

5.  As I said above, I do think the dissents make important points about the dangers of Kennedy’s sweeping language and the interpretive methodology it suggests.  However, I ultimately think their worries for democracy are somewhat misplaced.  The Court will never go as far as they fear, even with Kennedy’s broad rhetoric available as a tool.  Moreover, the result today is not as extreme as Roe, which remains at the outer boundary of “substantive due process”—the source of the constitutional right to privacy/liberty/autonomy.  But the dissenters’ concerns are certainly understandable.  An honest reading of Kennedy’s opinion could easily justify some pretty dramatic results.  Nonetheless, the better reading is a more circumscribed view of constitutional liberty.  In other words, Kennedy’s sweeping language must be read in the context of the history of “family privacy” cases—marriage, contraception, abortion, initiate relations.  Limiting his language to that domain, today’s case does not create quite the danger that the dissenters contend.  Again, though, there are legitimate bases to stretch the case beyond family privacy, and then the dissenters fears could, in theory, be realized.

6.  Some news reports have questioned how Roberts can be “on both sides” in these two cases--the Obamacare case and this one.  But there is nothing contradictory about what Roberts did.  In each case, he took the side of judicial restraint based on extremely plausible interpretive arguments.  Roberts may be wrong in one, both, or neither of the cases.  But his approach was deeply principled.

7.  I think this is a very good day for constitutional liberty generally and a truly great day for GLBT rights specifically.

Analysis of King v. Burwell -- The Obamacare Tax Subsidies Case (JUNE 26, 2015)

ORIGINALLY POSTED ON MY OTHER BLOG ON JUNE 26, 2015

Here are my thoughts on the Supreme Court’s decision on June 25, 2015, in King v. Burwell.  In that case, the Court ruled that tax subsides are available to those purchasing health insurance on both (1) exchanges set up by a state itself, and (2) exchanges set up by the federal government for a state.  I agree with the Court’s ruling.  While I believe reasonable minds can differ in this case—something that is virtually always true when the decision is 6 to 3—I think the majority has the better argument, and by a good margin. 

It will be difficult for me to write a summary of the case that digs deeply into the substance without almost rewriting the various opinions in full.  That is because complex statutory interpretation cases, like complex contract interpretation issues, come down to the weight of the evidence taken as a whole.  There are numerous relevant categories of evidence in these types of lawsuits.  And there are often multiple pieces of evidence from each category.  That is certainly true in King v. Burwell.  As a result, any true summary that I could write would leave out critical detail.  Given that, and for reasons of time, I am going to summarize the opinions in more general terms and include selected arguments for each side. 

Before getting to those thoughts, however, let me note that statutory interpretation is not rocket science.  And it does not take a law degree to understand the basic concepts, even if it does take such a degree to capture some of the deeper nuances.  Accordingly, given that the case is not that long, those nonlawyers (and lawyers) deeply interested in this matter ought to consider reading the case in full rather than relying solely upon my assessment below.  The opinion is available here on the Supreme Court’s website.

Now, to business.  The Affordable Care Act says that tax subsidies are available to those people who buy health insurance on an exchange “established by the State.”  Given that the statute defines “State” to mean the 50 states and some territories, there is a good case that the four-word phrase “Established by the state” means that a person may only receive tax subsidies if the person buys insurance on a state exchange; those purchasing on a federal exchange may not receive the subsidies.  However, the single most important principle in statutory, contractual, and constitutional interpretation is that language must be read in context.  And the full context of the statute creates a powerful argument that “established by the State,” as used in the relevant provision, does not rule out subsidies on federal exchanges.  Indeed, Chief Justice Roberts marshals multiple types of arguments to make a compelling case that the tax subsidies apply to both state and federal exchanges, including (1) textual arguments (a close reading of the text), (2) structural arguments (analyzing the relationship of textual provisions throughout the statute), (3) purposive arguments (assessing the purposes or goals of the act, as reflected in both the language of the statute and material from outside the statute—called “extrinsic evidence”—such as legislative history), and (4) consequential arguments (focusing on the consequences of various interpretations and how those consequences match up with the language and purposes of the statute).

For an example of a close textual reading, the statute provides that if the state chooses not to set up an exchange, the federal government “shall . . . establish and operate such Exchange within the state.” (Emphasis added.)  Roberts argues that this means that federal exchanges essentially stand in for state exchanges and should be treated in the same manner for many purposes.  In other words, Roberts is saying that the words “such exchange” support the conclusion that any federal exchange just is a state exchange (for many purposes).

For an example of a structural reading, Roberts points out that if tax subsidies are only available on state exchanges, then there will be no individuals who meet the tax subsidy eligibility standards in states with a federal exchange.  But, Roberts continues, the statute “clearly contemplates” that there will be qualified individuals for every exchange because all exchanges must make available health plans for qualified individuals.  How can an exchange make available health plans for qualified individuals if there are no qualified individuals for that exchange?  To put this argument in broad terms, Roberts is arguing that between the two readings of “established by the State,” one creates a conflict with other language in the statute and one doesn’t.  Consistent with long-established canons of statutory (and contractual) interpretation, it is better to chose the reading that avoids the conflict—the reading that allows subsidies for the federal exchanges.

Here is an example of an argument that combines structural, purposive, and consequentialist reasoning.  First, some basic principles.  The guaranteed issue provision requires that insurance companies provide insurance to anyone who requests to buy it regardless of preexisting conditions.  The community rating provision requires that everyone be charged largely the same price for health insurance regardless of their health condition.  And the individual mandate provision requires that everyone own insurance or pay a tax/penalty.  Roberts argues that these provisions will not work together as intended by the Affordable Care Act if the tax subsidies are not available on federal exchanges.  That is because, without the subsidies, many people cannot afford to buy insurance on the exchanges.  Most of those people will then be exempt from the individual mandate under one of the exceptions in the law and thus need not buy insurance.  Next, if the healthy people in that group do not buy insurance and the sick people do (a very likely occurrence), that will raise premiums, pricing more healthy people out of the market.  Finally, as more people are priced out of the market, insurance will become even more expensive, creating a feedback loop that Roberts calls a “death spiral.”  That feedback loop will defeat essential purposes of Obamacare reflected throughout the statute.

Roberts makes other powerful arguments.  In fact, I agreed with almost every point he made.  I do believe he overstated his case in a couple of places.  But overall, his arguments—and responses to the dissent’s arguments—were excellent.

Turning to the dissent, Justice Scalia presented a number of solid points.  But unlike Roberts, he also makes a number of unpersuasive arguments; and he overstates in multiple places.

Scalia makes more than a dozen distinct arguments in the dissent.  But I think three stand out from the others as strong bases for his position.

First, Scalia contends that the words “exchange established by the State” will have no meaning in the provision in question if that provision applies to both federal and state exchanges.  Such a result violates the canon of interpretation that all words in a legal text should be given meaning, if possible.  But I called this a “canon” for a reason.  It is not a rule.  It is just one, albeit important, factor to consider when interpreting legal language.  Moreover, the canon may not even apply here.  Remember that Roberts essentially argues that “established by the State” incorporates the federal exchanges due to other language (e.g., “such exchange” discussed above).  That would mean the three highlighted words do have meaning—just not their ordinary meaning.

Second, Congress chose to use the word “exchange” in some places and the phrase “exchange established by the State” in others.  That suggests that “exchange” and “exchange established by the State” have different meanings.  Point for Scalia.  This is one of Scalia’s strongest arguments, if not the best.

Third, Congress wrote that if a territory establishes an exchange (e.g., Puerto Rico, Guam, or the U.S. Virgin Islands), it shall be treated the same as if a state established the exchange.  Why didn’t Congress do the same with respect to exchanges established by the Federal Government?  Another good argument for Scalia.  However, Roberts essentially argues, in response, that Congress did not need to craft a similar provision for federal exchanges because the phrase “such Exchange,” discussed above, obviated the need to do so.

These three points, when mixed with a couple of other decent arguments Scalia offers, are simply not sufficient to overcome the much larger collection of persuasive arguments that Roberts presents.

As I said, Scalia also makes some unpersuasive arguments throughout his dissent.  Here are three examples. 

First, Scalia writes that it would be “hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State.’”  This is false.  In fact, it is actually quite easy to come up with stronger language.  Scalia fails to see this because he ignores a basic and recognized principle in both statutory and contract drafting: If your goal is to exclude something, it is always more effective to exclude that thing expressly than it is to implicitly exclude it by simply leaving that thing out of a list of what is included.  And failing to follow this rule has cost legislatures and contracting parties in more cases than I can count.  Given this principle, here are three examples of how the language could more clearly have prohibited subsidies on the federal exchanges:

1.         “. . . exchanges established by the State, excluding those created by the Secretary of Health and Human Services,” 

2.         “. . . exchanges established by the State pursuant to [the section setting forth the precise manner in which state exchanges are created] and not pursuant to [the section setting forth the precise manner in which federal exchanges are created]

3.         “. . . exchanges, except those established by the Secretary of Health and Human Services.”

All of these are clearly superior to the current wording in the statute, if the goal is to establish that tax subsidies do not apply to federal exchanges.

Second, Scalia essentially argues that “established by the State” must have the same meaning in each provision in which it is used in the act.  And if the four words are ignored when it comes to tax subsidies, the same must be true elsewhere.  This is incorrect.  It is indisputable that the same language can, and often does, mean different things in different contexts, even within the same statute or contract.  The fact that the same phrase is used in two places in a law or contract is important evidence that the meaning is the same.  But it is not the stringent rule that Scalia suggests.  Moreover, Roberts is best read as not actually arguing that the words mean something different in the relevant provision.  Instead, he is arguing that the provision, when read in context, does not exclude tax subsidies from federal exchanges because federal exchanges are supposed to be treated the same as state exchanges (at least for this purpose).

Third, according to the majority, if the tax subsidies are not available, then certain other provisions in the law would make little sense.  Scalia responds by saying that this only shows “oddity, not ambiguity.”  But here Scalia misses the point.  Oddity is precisely one of the bases that counts in favor of rejecting an interpretation.  Scalia is correct that oddity and ambiguity are two different things.  But the odder the result of an interpretation, the weaker that interpretation is.  Scalia continues by saying that laws often have unusual or mismatched provisions.  But when an interpretation leads to an usual result or a mismatch of two sections of a statute, that counts against the interpretation.  This result flows from multiple canons of construction, including (1) the preference for reasonable interpretations, (2) the preference for interpretations that are consistent with the principal purpose of a law, and (3) the canon that provisions should be read in harmony if possible.

Let me end by noting that King v. Burwell is a rather run-of-the mill case on statutory interpretation.  The opinions reflected some of the basic divisions among the members of the Court (and among lawyers and law professors more generally) regarding the appropriate method for interpreting statutes (and contracts and constitutions).  But both Roberts’s majority opinions and Scalia’s dissent were perfectly normal Supreme Court opinions addressing a perfectly mundane case (from the perspective of statutory interpretation).  Yes, this case had high political salience.  Thus, the attention it will get and the rhetoric it will spawn is going to be abnormal.  Indeed, Scalia’s dissent is filled with sky-is-falling rhetoric.  But that is rather common in dissents in cases like this—cases with high political salience.  Had Roberts and Kennedy sided with the Conservatives, I am rather sure that one of the four Liberals would have used similar rhetoric in dissent, much like Ginsburg (wrongfully) did in the Hobby Lobby/religious accommodation case.   In short, do not believe any statements that this case has “fundamentally altered our constitutional order” or any other such hyperbolic nonsense.  This was a typical statutory construction case, quite similar to the statutory and contract interpretation disputes American courts handle every day.

Corrective Justice, Reparations, and Race-Based Affirmative Action (JULY 6, 2015)

ORIGINALLY POSTED ON MY OTHER BLOG ON JULY 6, 2015)

I recently published a short essay (2500 words or so) regarding affirmative action with The Arkansas Journal of Social Change and Public Service, an online, student-run journal published at my law school. The article is available here. Comments are welcome, as always. Also, feel free to circulate as widely as you deem appropriate and in whatever ways are most convenient.

THE SUPREME COURT POLITICAL GERRYMANDERING CASE -- A LEGAL AND POLITICAL DISASTER.

This posting concerns yesterday’s Supreme Court decision upholding political gerrymandering – Rucho v. Common Cause.  The case was decided by a 5-4 margin with the usual conservative/liberal lineup.  When a case is decided 5-4, there are virtually always good arguments on both sides.  Virtually always.  This case is the exception to the rule.  The majority’s opinion is among the least persuasive I have ever read coming out of the Supreme Court.  I have long believed that the constitutionality of political gerrymandering is one of those rare salient constitutional issue about which one side is dead wrong.  Today’s majority and dissenting opinions confirms my view that the legal arguments in defense of political gerrymandering are very difficult to take seriously, let alone plausibly correct.

Let me start with some background.  The United States elects most legislators via districts.  Those districts have to be drawn by someone.  Typically, districts are drawn by state legislatures.  “Gerrymandering” is the process of drawing district boundaries to advantage a particular group in an election—a political party, a racial group, etc.  Normal districts are created by focusing on factors like existing political boundaries (e.g., county and city lines) and contiguity (simple shapes that keep all parts of a district close together).  Gerrymandered districts are created using unusual shapes that ignore existing political boundaries in order to benefit and harm the electoral prospects of subsets of the population.  Under Supreme Court case law establishing the principle of “one person, one vote,” all districts have to be roughly the same size in terms of population.  Accordingly, politicians cannot manipulate district quantities to achieve their political ends.  But they can reshape districts to achieve many of the same goals.

Gerrymandering has a long history in this country.  State legislatures have regularly drawn election districts to advantage one political party or the other.  But the fact that something is long practiced does not make it constitutional.  For example, there is an extensive history of racial gerrymandering in America.  Yet race-based gerrymandering is generally unconstitutional.  Under both the language of the Constitution and the vast majority of current precedent, the same should be true of political gerrymandering.

In her opinion for the four dissenters, Justice Kagan does an excellent job of explaining why gerrymandering on the basis of political party is unconstitutional.  Gerrymandering undermines the right to vote.  It makes it more difficult for a group to elect government officials that represent their views and interests.  And it does so on the basis of political affiliation: “Whether the person is packed or cracked [the two primary forms of political gerrymandering], his vote carries less weight—has less consequence—than it would under a neutrally drawn (non-partisan) map.”  In essence, political gerrymandering is a form of “rigging elections.”

The right to vote is a fundamental constitutional right.  Undermining that right violates the equal protection clause of the Fourteenth Amendment.  And doing so based on political affiliation violates the First Amendment as well.  Justice Kagan elaborates: “Yet partisan gerrymanders subject certain voters to ‘disfavored treatment’—again, counting their votes for less—precisely because of ‘their voting history [and] their expression of political views.’”  Thus, there is a compelling case that drawing districts to disadvantage people with a particular political affiliation is unconstitutional under both the Fourteenth and First Amendments.

Think about it this way: the purpose of elections is for voters to select their representatives.  But political gerrymandering constitutes the representatives selecting their voters.  It is the practice of government officials deciding which subsets of the population will vote on which incumbents and challengers in upcoming elections, partly or largely mooting those elections.  That is fundamentally inconsistent with basic principles of democracy embedded throughout the Constitution.  And this makes political gerrymandering both unconstitutional and immoral.

Based on my reading, the conservative majority essentially concedes everything above.  And Justice Kagan came to the same conclusion—with no objection from the majority.  So why does the majority uphold the political gerrymanders in this case?  Because it believes that the constitutionality of political gerrymandering raises a “political question.” 

Again we need some background.  Over the course of its history, the Supreme Court has developed many legal doctrines that require courts to avoid making decisions in certain types of cases.  Some of these doctrines are based on separation of powers and require deference to the judgments of Congress and the President.  Others are based on federalism and require deference to the judgments of state governments.  And still others are based on deference to government officials with more expertise in the relevant area, and thus require deferring to agencies like the Securities and Exchange Commission and the Environmental Protection Agency.

Many of the deference doctrines have plausible grounding in the text of the Constitution, statutes, and well-established principles of the common law.  But in my view, the Supreme Court has taken these doctrines as a whole much too far.  Sometimes that is because the justices genuinely (though wrongly) believe that the courts are legally obligated to stay out of a particular set of cases.  Other times, it is because the Court members believe that they need to preserve the institutional capital of the courts: The justices sometimes stay out of a controversy for fear of a backlash that could result in legal changes instituted by the elected branches that undermine the role of judges in our legal system and the rule of law.  While I believe it is legitimate for the courts to take concerns about institutional capital into account, I also believe that the Supreme Court has been far too gun-shy over the years.  In other words, the Court has dodged too many disputes on spurious legal grounds driven by an unreasonable fear of entangling the judiciary in politics.

One of the deference doctrines is called the “political question doctrine.”  Political questions are legal issues that are left to the political branches of government—Congress, the President, state legislatures, and governors.  Political questions include issues that arise in fields that are allocated to other branches of government by the Constitution.  For example, most matters of foreign policy are political questions reserved to the judgment of the executive branch.  Political questions also include issues that, in theory, are allocated to the courts, but that cannot be addressed using “legal reasoning,” and thus must be resolved by the political branches.  An issue falls into this latter category if the courts believe that they will be forced to rely primarily on their discretion in deciding whether conduct is constitutional because the courts find it impossible to develop a rule that consistently draws the constitutionality line.  Such a rule is known as a “judicially manageable standard.”  If it is not possible to come up with a judicially manageable standard, then the courts are not capable of addressing the issue with legal reasoning.  And that means that the issue belongs in the realm of discretion—i.e., politics.  Hence the political question doctrine.

While I have many problems with the political questions doctrine, I am particularly skeptical of claims that there is no judicially manageable standard (or JMS).  Indeed, I would probably eliminate this entire branch of the political question doctrine because I cannot ever recall a case where I thought there was no JMS.  Unfortunately, the Supreme Court has consistently suggested that the constitutionality of political gerrymandering lacks a JMS.  And today in Rucho, the Court definitively said so.

Chief Justice Roberts wrote the majority opinion for the five conservatives.  His argument that there is no judicially manageable standard comes down to two basic points.  First, there is no neutral standard by which we can judge political gerrymandering as improper.  Second, even if such a neutral standard existed, there is no way to determine when political gerrymandering crosses from improper into proper.  As Justice Kagan persuasively explains, Chief Justice Roberts is clearly wrong on both counts.

Most of Roberts’s analysis on the first point—the lack of a neutral standard—consists of him knocking down strawpersons.  In other words, the Chief was responding to arguments that no one was making (or at least no one of significance).  In her dissent, Justice Kagan adopted the standard used by the lower courts for deciding whether political gerrymandering is unconstitutional: the extent to which the politically-motivated electoral map varies from the type of map that would result if the legislature focused only on the non-political map-drawing factors identified in state law.  Note that “non-political factors” does not mean that the factors will have no political impact.  All map-drawing factors have political impact.  Rather, what is meant are factors that do not inherently focus on benefiting one political party or the other.  These include existing political boundaries (again, county and city boundaries), contiguity (effectively, the compactness of a district), and competitiveness (setting districts to maximize close elections), among other factors.

The Chief Justice only offers a single critique of this standard: Under the rule, what is constitutional would vary from state to state because the states have chosen to include different non-political factors in their laws governing the drawing of electoral maps.  A district might be constitutional in state A whereas a substantively identical district would be unconstitutional in state B.  But as Kagan crushingly argues, this is “a feature, not a bug.”  Chief Justice Roberts’s opinion makes clear that the majority’s primary concern with finding that political gerrymandering is not a political question is that this will result in courts interfering too much in the district-drawing process.  But the standard adopted by the lower courts and endorsed by the dissenters minimizes judicial interference with boundary creation.  It says to the states, you are free to pick among a variety of factors in drawing your electoral districts—again, existing political boundaries, contiguity, competitiveness, and others—just do not focus too much on trying to advantage one political party or another.  Note further that Chief Justice Roberts’s claim that constitutionality would vary from state to state is actually plainly wrong.  The constitutional standard is identical for every state: Do not deviate too much from the non-political factors you chose to put into state law when drawing your electoral districts.  That is all the uniformity that is required by the Constitution.

This takes care of the majority’s first point.  The second point concerns the words “too much” in the second-to-last sentence of the prior paragraph.  At what point does (i) intent to draw districts based on political advantage, and (ii) the associated impact, make a political map an unconstitutional political gerrymander?  My first answer would be “any intent and impact.”  That would easily satisfy the requirements of a judicially manageable standard.  Indeed, it would moot the concern about when political considerations have gone too far because they always would.  One of the lower courts essentially concluded that this is what the First Amendment requires.  Unfortunately, that argument is foreclosed by prior precedent stating that the drawing of district lines is inherently political.  In other words, the case law provides that it is permissible to take political advantage into account in drawing boundaries to at least some degree.  I would overrule those cases.  But even the dissenters accept those cases as governing precedent.  So that means we have to directly engage with the “how much is too much” question regarding intent and impact.

The answer of the dissenters and the lower courts is that political considerations go too far when (1) the intent to achieve a partisan advantage predominates, and (2) the effect of implementing that intent is substantial.  The “predominates” standard for intent is used with racial gerrymandering and in many other areas of the law.  So there is no colorable argument that “predominates” is not a judicially manageable standard.  Likewise, “the substantial” standard for effect is used in numerous areas of constitutional law and more generally.  Indeed, the dissent listed several examples.  So once again, “substantial” clearly satisfies the JMS requirement.

The majority tried to respond with respect to “substantial effects” by arguing that the areas of law that allow judges to make comparable determinations provide the courts with more guidance in answering the “too much” question than is true here.  But that is wholly unpersuasive, in part because, as Justice Kagan explains, most of the guidance in those other areas of law comes from the judicial development of case law over time, precisely what the courts should begin doing in the partisan gerrymandering context.

Justice Kagan also identified some state court decisions striking down political gerrymanders under state constitutional law using rules that are no more specific (and sometimes are much less specific) than the predominate intent and substantial effect test.  This too puts the lie to the claim that the standard favored by the dissent and lower federal courts isn’t manageable.  The standard here is clearly law and not politics, making the political question doctrine inapplicable.

In sum, I think the dissenters won the political question argument by a mile.  But the majority, by definition, carried the day, and “tragically” so as Justice Kagan wrote.

Rucho is considerably worse than Citizens United, both on the law and the politics.  Citizens United is the campaign finance decision essentially holding that corporations are free to spend unlimited money on political campaigns.  As I explained in detail at the time, I think Citizens United was wrongly decided.  But in that case there were plausible legal arguments on both sides.  Not so with politically gerrymandering in Rucho.  Citizens United is also not as much of a corrupting influence on our democratic system as Rucho.  Campaign spending was already on the upsurge in 2010.  And allowing such spending by corporations isn’t that different from requiring wealthy individuals to spend the money themselves.  In addition, campaign spending only indirectly impacts voting in elections.  Gerrymandering directly does so by diluting the right to vote.  (However, campaign spending does directly corrupt the legislative process via its influence on elected officials.)  I continue to believe that campaign finance is one of the biggest problems in our country.  But in my view, political gerrymandering is a greater danger to our democracy than the way campaigns are financed.  And Citizens United is only part of the broader campaign finance problem, whereas Rucho is the whole ballgame with respect to political gerrymandering.  In short, Rucho is one of the worst Supreme Court cases ever decided when we take into account both the law and the resulting impacts.

I’m not prone to hyperbole when I analyze political and legal issues.  And I generally have little patience for sky-is-falling rhetoric in American politics and law.  For examples, consider my aforementioned discussion of Citizens United and my breakdown of the 2016 election.  I keep my powder dry until necessary.  But this time, Rucho lives up to the hype.

Chief Justice Roberts outlined other alternatives to address political gerrymandering beyond federal courts, including federal legislation, state legislation, and state constitutional amendments.  One option that is gaining popularity is the use of independent commissions to draw electoral districts.  Some states have taken this step and Congress could force the rest to do so for federal elections.  Independent commissions are the near-universal practice in other first world countries that use our type of election system.  And it works quite well in those nations.  Such commissions don’t eliminate considerations of politics from boundary drawing.  That’s an impossibility.  But they greatly reduce the influence of partisan intent and they certainly work much better than our system whereby state legislatures draw Congressional districts and their own districts, a classic example of the fox guarding the henhouse.

Legislation has been introduced in the House of Representatives to make all sorts of improvements to our elections, including stopping political gerrymandering.  But nothing of significance is likely to pass until the Democrats take all three branches and get rid of the filibuster.  As most of you know, I have long wanted to abolish the filibuster.  I have a hard time coming up with a better justification for doing so than to pass reforms to ensure the proper functioning of American democracy.

Until then, I believe that Democrats across the country need to follow Maryland’s example.  One of the justifications for the Maryland gerrymander in favor of Democrats at issue in Rucho was to counter the types of gerrymanders the Republicans had implemented in North Carolina (also at issue in Rucho).  Since the Supreme Court has taken the gloves of, and because I don’t believe in unilateral disarmament, the Democrats should go all in on gerrymandering in states they control.  Unfortunately, the Republicans have an edge in the gerrymandering fight because of American political geography (i.e., the residential patterns of people who lean Democrat and Republican).  But better to fight and be slightly outgunned than to just let the other side run roughshod.  Perhaps gerrymandering will get so bad that both sides will agree to a truce.  Until then, or until the Democrats sweep the federal government and change the rules, play the game the way the refs allow.