SCOTUS-Getting it Right. Sometimes.

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Gerrymandering and School Busing – No Justiciable Standard

Rodney Dodsworth – December 23, 2019

Few take more delight in hammering Scotus than yours truly. Being supposedly apolitical, it is often anything but a neutral expositor of the law and regularly wanders into societal and political controversies in which it has no legitimate authority.

After decades of watching the Supremes divine political matters in which they substituted their conclusions for those of state legislators, I was astonished with their June 2019 decision in Rucho v. Common Cause. Finally, after decades, Scotus threw up its hands and decided to stand aside from the always messy post-census state redistricting battles.

At issue was North Carolina’s new electoral map. Historically, the state’s thirteen congressional districts went 6:7 democrat or republican. To avoid violations of the 1965 Voting Rights Act, the GOP majority avoided racial data and drew districts based entirely on past voting patterns. The result was a lopsided plan that radically favored Republicans by ten districts to three. When questioned, the plan’s author said he drew only ten GOP districts because he didn’t think he could squeeze out eleven!

Of course, the Left went nuts and cited violations of Article I and the 1st and 14th Amendments. American Marxists are never more humorous or ironic when they cite that which they despise, our Constitution.

The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of the court. Chief Justice John Roberts delivered the majority opinion, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Roberts made clear that partisan gerrymandering can be distasteful and unjust, but that states and Congress have the ability to pass laws to curb excessive partisan gerrymandering.

In other words, not only is life unfair, but politics are especially rude and unpleasant. The court would really like to help make politics fair, but it wasn’t within the court’s ability to design equitable redistricting standards. Oh, and the court is tired of dealing with the whiners and crybaby electoral losers every ten years.

So, after decades of screwing around with the ultimate in state-level political cage fights, conservatives edged out their Leftist colleagues 5-4, and got Scotus out of the anti-gerrymandering business.

What are the Scotus-derived non-justiciable political question standards?

  • A textually demonstrable constitutional commitment of the issue to a coordinate political department (meaning that the U.S. Constitution requires another branch of government to resolve questions regarding the issue);
    • A lack of judicially discoverable and manageable standards for resolving it;
    • An impossibility of deciding [a matter] without an initial policy determination of a kind clearly for nonjudicial discretion;
    • An impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
    • An unusual need for unquestioning adherence to a political decision already made.

Political questions include such issues as whether the nation is “at war” with another country, or whether the U.S. Senate has properly tried an impeached federal officer. In Rucho, Scotus finally adhered to its own rules . It should do so more often.

Were you subject to court-ordered school busing in the 70s and 80s? Brown v. Board of Education (1954), which overturned racial segregation laws for public schools, did not order nationwide busing to serve what the court soon regarded as a “compelling state interest” to achieve numerical equivalence of the races in public schools.

Brown, which eliminated de jure racial discrimination in public schools, reversed separate but equal in Plessy v. Ferguson. While Brown was decided 9-0, not all was not congeniality behind the scenes. One judge, Robert H. Jackson, had no doubts about the moral and political problems associated with segregation. But he did have second thoughts about the Court’s authority to do anything about it. For Jackson, the issue was the scope of judicial power as much as the constitutionality of segregated schools.

As Eugene Hickock wrote for the Heritage Foundation:

In several memos written by Jackson since the Court had heard oral arguments in the case the previous year, and in countless conversations with his clerks, the Associate Justice had roamed the judicial and legal mine fields that by then had come to surround the school segregation issue. For Jackson, “decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so.” But the laws of seventeen states and the nation’s capital stood in the way, as did social custom and mores in a large part of the nation. Overturning law and custom, and reversing an earlier understanding of the Constitution would require a substantial mandate from the Constitution, and Jackson was not sure it was there.

Going further, turning to “the original will and purpose of those responsible for adoption of a constitutional document as a basis for its subsequent interpretation,” Jackson had reached the conclusion that the framers of the Fourteenth Amendment had not given much thought, if any, to the issue of segregated schools. Indeed, the same Congress that proposed the amendment established segregated schools in the District of Columbia. Likewise, education practice and custom in the states had not been altered by the Fourteenth Amendment. Jackson could find nothing in judicial precedent for support either. Finally, and begrudgingly, he wrote in the early Spring of 1954, that he simply could not find “in the conventional material of constitutional interpretation any justification for saying” segregated schools violated the Fourteenth Amendment.

Jackson, the one judge initially not aboard Earl Warren’s social justice choo-choo train, finally gave in to pressure and voted with the majority. Since social justice cannot be achieved but can only be pursued, in an effort to address the ongoing de facto segregation in schools, the 1971 Supreme Court unanimous decision Swann v. Charlotte-Mecklenburg Board of Education, ruled that the federal courts could use busing as a desegregation tool to achieve racial balance. How noble.

In Swann, the Warren Court looked at the American community and didn’t like what it saw: city neighborhoods divided by race. Oh me, oh my. While this natural separation among races at the time so thoroughly upset them, what were the chances the good judges moved their families into minority areas and sent their children to public schools? Right.

Thanks to Swann, some federal judge thought a certain teenage girl, who would one day be my wife, needed to attend a distant hell-hole inner city dump of a high school where her first concern wasn’t learning; it was her safety. She eventually recovered from the four wasted years, but millions did not. I seethe today at the judiciary’s continuing arrogance to impose its fuzzy feelings on a defenseless nation.

Swann, which corrupted Brown, which overturned Plessy, was effectively reversed in 2007. The Roberts Court 5–4 ruling in Parents Involved in Community Schools v. Seattle School District No. 1 prohibited the use of racial classifications in student assignment plans to maintain racial balance. Whereas the Brown case ruled that racial segregation violated the Constitution, now the use of racial classifications violated the equal protection clause of the 14th Amendment.

While I applaud the effect of the decision, I find its reasoning off-key. The simple matter is that Scotus has no business involving itself in non-justiciable societal issues. Public schools, their management, elections, and taxes are the closest government entity to the people in often small school districts. Scotus should defend, not assault, local self-government. An engaged people is essential to republican governance.

If the people are too limited, if they’re excluded from self-government at the local level, they will soon lose interest in larger municipal, state, and national matters. Sometimes, Scotus admits mistakes and reverses itself. Along the way, it has often done incredible societal damage. Dear Scotus, follow your own standards and leave politics to elected politicians.

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