POLITICS
12/08/2015 11:06 pm ET Updated Dec 09, 2015

Politics Are Dominating The Supreme Court This Week. That's Not Good.

If a majority of the justices get their way, the rules of the democratic process could get tougher than ever before.

WASHINGTON -- The Supreme Court did three things on Tuesday, and all three had to do with politics.

More precisely, they all had to do with the politicization of the rules of voting, redistricting and representation -- and how state and national laws, and the U.S. Constitution, keep it all in check. Or don't.

The main event was Evenwel v. Abbott, a high-profile case that threatens to change the rules for who gets to put people in power at the state level -- much to the likely detriment of Latinos, immigrants, families with children and even prisoners.

But before that, a unanimous court decided Shapiro v. McManus, an under-the-radar case dealing precisely with the role of federal courts in deciding these kinds of disputes. In a brief, eight-page ruling, Justice Antonin Scalia and his colleagues essentially made it easier for courts to entertain these cases.

Then came the hearing in Harris v. Arizona Independent Redistricting Commission, the second order of the day on Tuesday. This case hasn't received nearly as much media attention as Evenwel, but it is just as politically charged.

Voting rights activists demonstrated outside the Supreme Court on Tuesday, as the justices considered arguments in two redist
Alex Wong/Getty Images
Voting rights activists demonstrated outside the Supreme Court on Tuesday, as the justices considered arguments in two redistricting cases.

Like Evenwel, the Arizona case touches on the Constitution's "one person, one vote" principle -- largely uncontroversial for almost 50 years, but suddenly a source of contention for politicians on both sides of the aisle.

Neither case is a walk in the park for the justices. The Arizona case, in particular, is all about whether the concept of "one person, one vote" allows partisan politics to play some role in the process of legislative redistricting -- that is, drawing and redrawing the state map for representational purposes.

The words "played a role" figured prominently at the hearing. And for an hour, the justices pressed the four lawyers who argued the case for guidance on whether redistricting commissions -- like the one in Arizona -- can ever play a little politics in the process.

"If you're going to say that no members of a redistricting commission can ever have partisan views, I don't know where you're going to get your membership from," Justice Stephen Breyer said at one point. The courtroom erupted in laughter.

"There's a difference between saying something's a necessary evil and something's evil," Chief Justice John Roberts added, seeming to concede that partisanship is inevitable in redistricting decisions.

Perhaps as a result of all the politics, something curious happened by the time the justices got to Evenwel: They all seem to split neatly along party lines.

Because for nearly 25 minutes during Evenwel, not a single conservative justice posed a question to the conservative side. Only the liberal justices took turns assailing William Consovoy, the lawyer representing the rather radical Republican voters at the center of the case. Justice Ruth Bader Ginsburg spoke, followed by Justice Sonia Sotomayor. Then came Justice Elena Kagan. And finally, Breyer.

Evenwel is a political case. The bottom line for Consovoy and his clients is to get the court to rule that "one person, one vote" prohibits the state of Texas -- and every state in the Union -- from taking total population into account when equalizing legislative districts. The relevant measure, they argue, should be the distribution of eligible voters.

 

The Supreme Court on Tuesday heard two politically charged cases seeking to elucidate the Constitution's "one person, one vot
Bill Clark/CQ Roll Call/Getty Images
The Supreme Court on Tuesday heard two politically charged cases seeking to elucidate the Constitution's "one person, one vote" principle.

As the Brennan Center for Justice laid out in a recent report, the consequences for such a rule would be dramatic -- potentially tilting the balance of power in state legislatures toward older voters and voters in more rural areas, both groups that tend to vote for conservative candidates.

Ginsburg and her cohorts weren't having it.

"What about the many times the court has said that the ­­the principle is equal representation of the population?" Ginsburg asked Consovoy right out of the gate. "We have had now, for half a century, population [as] the legitimate standard."

Sotomayor followed right behind.

"There is a voting interest, but there is also a representational interest," she said. "And it's that which has led us to ­­accept the total population base, because states have to have some discretion to figure out who should be having the representational voice."

When redistricting, Sotomayor continued, "the legislature is protecting not just voters. It's protecting its citizens, or noncitizens. The people who live there." 

In a poignant moment, Kagan referred to "the theory of the Constitution" -- the notion that the 14th Amendment was drafted so as to protect "numbers, not voters," and "numbers, not property." And Breyer spoke of the representational needs of families, children and human beings.  

The liberal justices were certainly prepared. And when it was time for the conservative side to prod Texas -- which is defending its right to draw legislative maps to account for all these non-voting groups -- they did ask enough skeptical questions so as to cast some doubt on the final outcome of the case. (Scalia, for his part, didn't ask a single question during the entirety of Evenwel.)

Decisions in Evenwel and the Arizona case are expected by the end of June.

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