Right in DC Podcasts Supreme Court

Hans von Spakovsky: Supreme Court Cases in Politics

My guest today on RIGHT IN DC is Hans von Spakovsky. He’s a good friend, a fellow lawyer and a fellow UVA parent. We’re going to talk today about one of my favorite topics: Supreme Court cases in politics.

To give you a little background on Hans and why he’s an expert able to discuss this in great detail, and also in a way that makes it easy for people to understand: Hans is a Senior Legal Fellow at the Heritage Foundation, a former FEC commissioner, and a former Department of Justice lawyer.

We started off by discussing his recent article, “Courts Should Stay Out of the “Political Thicket” of Gerrymandering.” We talked about:

  • What gerrymandering is
  • Recent cases where Republicans and Democrat are suing regarding redistricting
  • Figuring out the correct proportion of redistricting
  • Why it’s a bad idea to have the Supreme Court rule on redistricting
  • History of partisan redistricting and court cases
  • Why voting can go different ways in a district each time there is an election
  • What his predictions are for these cases
  • Why the courts will be flooded if the court allows partisan redistricting
  • How the current political environment will play into these cases
  • What other cases he is watching
  • The slow process of confirming nominees

MORE

https://www.heritage.org/staff/hans-von-spakovsky
https://twitter.com/HvonSpakovsky
http://www.hansvonspakovsky.com/ 

– – – –
Help support Gayle’s RIGHT IN DC Podcasts: www.patreon.com/gayletrotter 

Access, subscribe and listen to her podcasts on:

TRANSCRIPT

Gayle Trotter

This is Gayle Trotter, host of Right in DC. Today our guest is Hans von Spakovsky. I’m so happy to introduce him to you today. He’s a good friend, he’s a fellow lawyer, and he’s a fellow UVA parent. What about those Hoos in the Final Four, Hans?

Hans von Spakovsky

Yeah. We were all very excited watching that game getting them into the Final Four.

GT

We’re going to talk today about one of my favorite topics — Supreme Court cases and politics.

Just to give you a little background on Hans, and why he’s an expert able to discuss this at great detail, and also in a way that makes it easy for people to understand, Hans is a Senior Legal Fellow at the Heritage Foundation. He is a former FEC Commissioner and a former Department of Justice lawyer.

Hans, thank you so much for joining us today.

HVS

Gayle, thanks for having me on.

GT

You recently wrote a piece talking about these two cases that are before the Supreme Court on gerrymandering, and I thought we could start our discussion just talking about what gerrymandering is. I think a lot of people are familiar with the term; it’s a very common term, but we might not understand exactly what it means in this context.

HVS

Gerrymandering is the term given to the drawing of the boundaries of legislative districts, state legislative districts, and congressional districts, in a way to give advantage often to one political party or another for other reasons. The name comes from a former Massachusetts Governor Elbridge Gerry, who gave his name to a map drawing in 1812 for a state senate district in Massachusetts that looked like a salamander. They took his last name, Gerry, and combined it with “mander,” and they come up with the term gerrymander.

GT

People might remember that illustration from their American History textbooks. That is a very famous picture from the history of American politics and something that, I think, this calls to mind. Maybe we’ll put a link to that picture as well.

Describe these two cases that are before the Supreme Court. I think it’s interesting, too, we can get into this a little bit, but it’s not just one party that is protesting the way that these districts have been drawn up; is that correct?

HVS

That’s right. We’ve got one case of Democrats suing in a case out of North Carolina and in a case out of Maryland, we have Republicans suing over the way the Democratically controlled state legislature drew up the congressional districts there.

GT

Isn’t that interesting? Because this is certainly where the locus of political power resides, and the fact that state legislatures can decide how to allocate the districts and certainly that has been subject of discussion, really, from the founding of the country.

HVS

That’s true. The state legislatures control the line drawing in most of the states. The only relatively recent change is there are a couple of states (California is one, Arizona is another) where they’ve taken the power actually away from the state legislatures and have placed it in what they call independent redistricting commissions. Although some people sometimes question just how independent those commissions are.

The thing about the line drawing for both states seats and congressional seats is that, first of all, when it comes to state seats, for example, most states have either in their state constitution or in their state laws, they have provisions saying that when the lines are being drawn, you’re supposed to, for example, try to keep counties and towns together. You’re trying to make the districts as compact as possible. They have various rules like that.

On the federal level, the courts have developed, basically, two claims you can make against redistricting. One, you can claim that it’s racially discriminatory under the Voting Rights Act, if race was too much of a consideration when legislators were drawing the lines. The second concept that has been developed by Supreme Court is the One-Person One-Vote theory under the Equal Protection Clause. Under that, what the Supreme Court has said is: When you’re drawing up districts in a state, their populations have to be as equal as possible. You can’t have one congressional district with 100,000 people in it and a second congressional district in the second state with 300,000 people in it because that’s going to dilute the vote of individuals. Their vote won’t be the same value as that of others in other districts. The districts have to be as equal as possible.

What these two cases are about is the plaintiffs in these cases are trying to convince the court to recognize a third cause of action under the U.S. Constitution and its partisan redistricting. They’re trying to claim that if state legislators draw up congressional districts that favor one political party that that is a violation of the Constitution, both the First Amendment and the One-Person One-Vote provision in the Equal Protection Clause of the 14th Amendment. Up until now, Gayle, the Supreme Court has refused to do that.

GT

Does the black letter law of the Constitution speak to this at all?

HVS

No. No, it doesn’t. In fact, what’s happening here is the plaintiffs in these cases are basically trying to convince the court to create a constitutional violation out of, for example, the 14th Amendment. That’s the problem with this whole theory.

We all complain about gerrymandered districts. We complain about the crazy lines they draw, and we complain sometimes when the political parties may favor themselves and incumbents, but that doesn’t mean you should create a federal right where it doesn’t exist in the Constitution to deal with this. The way you deal with it is you go into, say, legislatures and you convince them, or through the referendum process, to change the rules that govern how districts can be drawn up. But that’s not what the plaintiffs in this case are trying to do. They’re trying to create a new constitutional right where one doesn’t exist.

They are actually also trying to convince the court to say that the Constitution requires proportional representation. Here is the essence of their cases.  The essence of their cases is that they are saying that if, for example, the Democratic Party has a presidential candidate in a particular state who gets, let’s say, 60% of the vote, then they ought to be entitled to 60% of the state legislative seats and 60% of the congressional seats in that state. The problem with that is you can look all through the Constitution, the Bill of Rights, it doesn’t guarantee the political parties proportional representation. Of course, a presidential candidate might get, for one party, well maybe he or she gets 60% of the vote in one election in that state, but in the next election they may get a different amount. Lots of people split their votes; they split their ticket. Sometimes they’ll vote for a Republican for one office and a Democrat for another. How are you supposed to figure out what the correct proportion is?

It would cause chaos to recognize this as a constitutional right which is why I’m hoping the court listens to all of these arguments and then says this is a political thicket that we are not going to get into.

GT

That’s what Paul Clement, who was arguing the case, talked about, right?

HVS

Yes. That’s it exactly.

GT

Not only there is a problem with this in terms of these cases themselves but it will have a larger impact on the court’s reputation for not getting involved in these types of political matters and maintaining the independence of the Supreme Court. Is that how he put it?

HVS

That’s exactly how he put it. The court already has complained about the fact that it gets flooded with redistricting cases under both the Voting Rights Act and the Equal Protection Clause. If they recognize a partisan or gerrymandering as a constitutional violation, they will really get flooded with cases. Paul Clement is a former Solicitor General of the United States. I think he actually holds the record. I think he’s argued more cases before the Supreme Court than any other single lawyer.

GT

That’s amazing.

HVS

Yeah. He was representing the North Carolina legislature in this case. Here is exactly what he said. He said, “Once you get into the political thicket, you will not get out, and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics.” The reason for that is the Supreme Court already has reputational problems and if it’s choosing which political party gets to win in these redistricting cases, it’s really going to be opening up a Pandora’s box of problems if it does that.

GT

Hans, this is really a separation of powers issue at the foundation, correct?

HVS

Yes. It is. The last time the Supreme Court looked at this was about 15 years ago, and it was a case out of Pennsylvania, and it was a similar circumstance. Democrats went to court and said they ought to get more of the congressional seats in the state because the Democratic presidential candidate had gotten a bigger percentage of the vote. Back then, what happened was the court threw out the case.

The four liberal justices on the court wanted to recognize this as a constitutional violation. Four of the conservative justices, led by Justice Scalia said, look, this is a political question. This is something that the Constitution line drawing gives to the legislature. The courts should not be getting into the middle of this. Plus, there aren’t any judicially manageable standards for trying to figure out when a violation would occur. In essence they would be saying you can engage in some politics in line drawing, but if you engage in too much politics you’ve suddenly violated the Constitution.

I haven’t trademarked this, Gayle, but I call it the Goldilocks principle of redistricting. A little politics is okay, but too much politics is not okay. It has to be somewhere in the middle. The fifth vote that threw out this Pennsylvania case was Justice Anthony Kennedy, and while he agreed that this particular case ought to be thrown out, he said, “If somebody can come up with some judicially manageable standards, well then I might recognize partisan redistricting as a violation of the Constitution.” Of course, Justice Kennedy is gone, and I’m hopeful that the justices we have on the court now, the five-member conservative majority, will realize this is really something they should not be getting into.

GT

When you talk about particularly that concurring opinion by Justice Kennedy, essentially saying if someone can come up with a manageable standard, doesn’t that belie the entire principle of our judicial system? Is that unelected life tenured people, they are appointed. they are nominated. they are confirmed, but should they be coming up with “manageable standards” to determine the most important part of self-governance who represent the voters?

HSV

Yeah, no, I think you’ve actually put your finger right on it. That really is a problem. For all of the complaining we do about gerrymandering, the one thing that we can do, as members of the public and voters, if we don’t like what state legislators have done in drawing new boundary lines, we can try to vote them out of office. But if judges, federal judges, are the ones drawing up all these lines, there’s nothing we can do about it. They’re not accountable to us. Why? Because under our system, as you know, federal judges are appointed for life. That’s why that the process we have is a very important one, even when legislators engage in gerrymandering that we don’t like, at least we can do something about it. The other answer to this, as I’ve said, change what the rules are, governing how redistricting is done in your particular state.

I’ll tell you something interesting, Gayle, if I may, that shows you the danger of judges trying to impose what they think today on what actually happened in our history. That is in the North Carolina case, the lower court, the federal judges said, “Oh, well, partisan redistricting, we think, is a violation of the 14th Amendment, the Equal Protection Clause, and we certainly think that that’s correct.”

The Public Interest Legal Foundation, which is a great conservative group, they filed an amicus brief in the case, in which they went back, and they look at the history of the 14th Amendment. People remember, that’s one of the reconstruction amendments, was passed in 1868. What the Public Interest Legal Foundation did is they went, and they looked at the 1864 presidential election. It turned out that Lincoln, as you know, beat George McClellan, but in many of the states McClellan got in the 40th percentile in his votes. He got 45%, 49%. He actually did very well.

GT

That’s a good showing.

HVS

Then they took a look at what was the congressional representation from all of those states were McClellan did so well? In many of the states, Republicans held every single congressional seat. There wasn’t a single Democrat member of Congress. Which what that means is that the members of Congress, who wrote, sponsored, and voted for the 14th Amendment came from some of the most gerrymandered districts in our history. They make today’s gerrymanders look mild by comparison. There was no way that those legislators would’ve thought that they were passing an amendment, the 14th Amendment, that would cause the kind of gerrymandering that they engaged in to get their seats. They would say that that violated the 14th Amendment.

GT

If people of the Republican Party and the Democratic Party think about this, it also limits their influence in their own party because like you’re saying you have the opportunity to split a vote between a Republican vote for one office, a Democrat vote for the other office. You have the ability to just vote for someone from the other party as we saw most recently in the 2016 election; people cross party lines. This is not the Soviet Union, where everyone belongs to the Communist Party and you have to vote in lockstep, if they even actually took the votes. But certainly I think the parties themselves don’t realize, the parties do, but the individual Republicans and individual Democratic voters, they don’t understand that if they advance this type of thinking that they’re actually undercutting their power in their own party.

HVS

I think you’re right and part of this is demonstrated by the fact that what the challengers here are saying is that their political party ought to get a share of the congressional representation in the state that, for example, is the same ratio as their presidential candidate got. That kind of thing changes all the time. Compare the 2012 election to the 2016 election. In 2012 Barack Obama won Michigan and Pennsylvania, in 2016 Trump won those two states. So what are they going to do? Change out the congressional seat ratio between the Republican and Democratic Party from election to election? This theory they’re trying to push is just not practical either.

GT

I think that’s a great finer distinction on this as well because the presidential elections occur every four years, the House seats are up every two years, so when this happens are you going to kick people out? By the time you get the data and you rearrange everything, it seems like it’s never really going to reflect what nine black-robed justices in Washington D.C. think should be correct. Maybe the reason there is no manageable standard, even apart from the fact that it’s a bad idea, is because there cannot be a manageable standard?

HVS

I think that’s exactly right. By the way, in a prior case that made it to the Supreme Court last year, it was a case out of Wisconsin, making the same kind of claims. There, a bunch of law professors, they came up with what they said was here is the standard. We have this thing called the efficiency test. Their test, basically, what they said was every vote in a district that’s more than the candidate needed to win is a wasted vote and therefore the district should be redrawn. In other words if somebody got 55% of the vote in a congressional district and won, according to these law professors that 5% that they got over 50%, plus one, that those were wasted votes. That district ought to be redrawn so those voters are put elsewhere. It was, I think, again, a crazy theory, but heck they convinced a lower court to agree with it.

GT

I think that’s it sounds suspiciously like an algorithm, which we’re seeing in a lot of Twitter and Facebook discussions and controversies now. Why anyone would think that that was a good idea, I just can’t even imagine.

HVS

No, in fact, it was an algorithm, and I agree with you. It’s just a very bad idea.

GT

So you have been a long-time court watcher, particularly in this area, based on your expertise. What do you see in the tea leaves?

HVS

Judge Kavanaugh was pretty quiet during the oral arguments in these cases. I think what’s going to happen is I think we’ll actually, and I’m hopeful, we will get a five-member solid majority that says partisan redistricting is not a violation of the Constitution. I’m hoping we will get a decision, finally, that will end all these cases that keep getting filed across the country pushing this idea. I think part of it is just a proper interpretation of the Constitution and the 14th Amendment, but I think that the justices will be pushed in that direction because of the fact that, as I’ve said, they know that if they recognize this as a possible cause of action, they will be flooded. The federal courts, all over the country, will be flooded with new lawsuits claiming that, not just congressional-line drawing, but state legislative-line drawing, county commission seats, city council seats, have been done in a partisan manner. It’ll be like we’ll need a Noah’s Ark to ride out the redistricting litigation that will be filed all over the country.

GT

Actually I didn’t even know this, it is part of the Supreme Court’s mandatory jurisdiction. Meaning they are required to consider these cases. Is that how you would explain it?

HVS

Yes. Yes, it is, particularly under the Voting Rights Act. They think they see a lot of redistricting cases now, just wait and see what happens if they recognize this as a valid cause of action.

GT

I think it’s also really important, underscored, that if the court decides in the way that you predict that it will, at least five, to not try to strike down politics in this type of district drawing, the Republican Party will lose and the Democratic Party will lose because they each have a case contesting this. That seems like the complete example of independence.

HVS

Again, I think you’ve put your thumb right on that point, it’s a very important point. By the way, something else I wanted to mention because I thought it was kind of funny. Part of the arguments that have been made by the challengers, is that the founding fathers, when they drew the Constitution intended to prevent partisan gerrymandering and that’s why the court should get into it. Paul Clement reminded them that, in fact, the framing generation, the folks who framed the Constitution, they understood partisan gerrymandering. In fact, James Madison was the intended target of a partisan gerrymander in Virginia by Patrick Henry, one of the most famous heroes of the Revolution. He complained about it bitterly and so did George Washington, but neither of them even thought about going to federal court to claim that this that couldn’t be done under the Constitution.

GT

I think that’s a great point because you can be upset about a decision or circumstances, and, yet, not make a federal case out of it.

HVS

That’s exactly right. In fact, I think part of what is going on here even though the challengers don’t want to admit it, is the actions they’re engaging in are antidemocratic. What they’re saying is, look, we were the political losers in the political arena, we can’t convince the state legislature to make the changes we want, so we want to go to the courts and get the courts to do it. That goes against the very democratic process we have in the Republic that was set up under the Constitution.

GT

How do you think the current political climate influences the evaluation of this case? By that, I mean all of the disparagement that has been heaped on the current administration, what they call gridlock in Congress although that’s part of why we have our system designed this way is to promote gridlock, in a sense. Do you think that that will play into the Supreme Court’s decision at all? Which you and I, with our similar judicial philosophies, don’t think that that should, obviously, but do you think it will?

HVS

I hope that it won’t. On the other hand, Chief Justice Roberts, John Roberts, comes under a lot of criticism. On many cases involving election issues, he actually comes down the right way. He definitely came down the wrong way in the Obamacare decision and all of the indications, the stories written about it, seemed to indicate that he came down the wrong way because he was afraid of the political consequences of throwing out Obamacare. If that’s true that’s a bad thing because the justices should be making their decisions based on the Constitution and politics should not be regarded by them at all when they’re making those decisions. I don’t know what to tell you. I hope they come down the right way on this and I hope the politics of the moment and the complaints that people have about gerrymandering all over the country, I hope that doesn’t influence them to go the wrong way.

GT

Are there any other cases that you’re watching this term?

HVS

The big case coming up, Gayle, as you know is the census case. As you know, the Trump Administration announced that they were adding a citizenship question back on to the census. They were reinstating it. There were a number of lawsuits filed. One of those lawsuits has made it to the U.S. Supreme Court. It’s going to be argued April 23rd, and the court is going to decide can a citizenship question be added back into the census.

GT

Do you have a prediction on that?

HVS

Yes. I actually think the court is going to overturn the lower court decisions that went against the government and enjoin the Trump Administration from adding it in. I think this will be similar to the travel ban cases where all these very liberal lower court judges enjoined the government, when it got up to Supreme Court, the Supreme Court rules the Trump Administration said this is fully within the authority of the government to do and I think it’ll be the same here.

GT

Speaking of those lower court judges who are creating a lot of case law in opposition to settled principles and continue to do so, President Trump has been moving full steam ahead putting nominees in these lower courts. Do you think that the Senate is doing a good job in making sure that these nominees get hearings before the committees and get their votes and are able to be confirmed to the lower courts? Which, as you and I know so well, so many of these cases are decided at the lower courts and the Supreme Court does not have the capacity or it’s not designed that way to review every single decision by lower courts. So a lot of these bad decisions stand until there’s a split in the circuit, or until enough of them percolate up that the Supreme Court decides that they want to engage whatever issue it is.

HVS

I think that when it comes to getting these folks approved, I think the Senate is doing a good job. The problem is they’re not moving fast enough. They are moving too slowly. We complain about, senators have, like, a two-day workweek, and they don’t like spending more time on the floor. They need to up their game and they need to be there full weeks, every week, and they need to be getting as many of these judicial nominees through as possible.

We’re talking about judicial nominees. There are over 100 vacancies in the federal court. There are also a huge number of executive branch nominees also sitting there and they are just moving too slow. The Senate is moving just too slowly in getting through and approved. They ought to be approving a couple of people a day and that just hasn’t been done.

GT

Do you think that should be the Senate’s focus given that the House is controlled by the Democratic majority? Probably not a lot of legislation, game changing legislation, is going to get passed through both chambers of Congress and land on President Trump’s desk. Should confirming the nominees be the top priority of the Senate right now?

HVS

Yes. That’s exactly right. They can’t get anything good out of Congress because of the House. The Senate has the sole job of confirming people. That should be their number one top priority. Their second priority ought to be killing and stopping any of the bad bills coming out of the House.

GT

Absolutely. Thank you so much, Hans, for joining us. If people want to follow you on Twitter, what is your handle?

HVS

HvonSpakovsky and they can also see my stuff at Heritage.org.

GT

We really appreciate you joining us to talk about this, Hans.

HVS

Sure, Gayle, anytime.

GT

This is Gayle Trotter. You can like me on Facebook. You can follow me on Twitter. You can follow me on Instagram. Please subscribe to my YouTube channel. You can subscribe to this podcast Right in DC on iTunes and you can leave a review. Most importantly, you can support this podcast on Patreon. We have great T-shirts as gifts for patrons, courtesy of Hard Hits Custom Apparel. We would like to thank Trio Caliente, a local D.C. group for the music on the podcast. This is Right in DC.

About the author

Gayle Trotter

Gayle Trotter is an attorney, political analyst and columnist who regularly appears on TV, such as Fox News, contributes to The Hill, The Daily Caller, Townhall and other well-known political websites, and is a frequent guest on radio shows across the country providing an insider’s view of Washington, DC. Read More