Tag: SCOTUS

Supreme Court Leaves Meaning of “One-Person, One-Vote” Unclear

This morning, the unanimous Supreme Court ruled that Texas was constitutionally justified in drawing state electoral districts based on total population, even if this meant that great disparatives result among districts in numbers of voters. This was the case of Evenwel v. Abbott, in which Cato had filed a brief arguing that the plaintiff-voters’ proposed “citizen of voting age population” (CVAP) metric was a much better one to use when applying the “one-person, one-vote” standard. 

While the eight-justice Court managed to achieve rare unanimity in an election-law case, at least in judgment, it did so only by declining to address the elephant in the voting booth. The Court failed to fill the gaping hole in its voting-rights jurisprudence: the question whether the venerable “one-person, one-vote” principle requires equalizing people or voters (or both) when crafting representational districts.

Still, the ruling leaves open to the states the ability to experiment further with populations considered in drawing district lines both for their own legislatures and federal House seats. Some states already exclude aliens, nonpermanent residents, nonresident military personnel, inmates who were not state residents prior to incarceration, and other non-permanent or non-voting populations.

States like Texas where total-population allocations continue to diverge from eligible-voter allocations—resulting in great disparities of voters between districts—should indeed try to ensure that each vote has the same relative weight, forcing the Supreme Court’s hand in some future case. Regardless of the outcome in that eventual case, however, jurists and political scientists should take heed of Justice Alito’s concurring opinion, which concisely explains why the “federal analogy” to the Constitution’s apportionment of House seats among states is inapposite to the question posed in Evenwel regarding redistricting.

For more background on the case, see my SCOTUSblog essay.

Friedrichs Decision Is a Blow Against Educational Excellence

Today, an evenly divided Supreme Court affirmed a lower court’s decision in Friedrichs v. California Teachers Association to permit unions to continue charging nonmembers “agency fees” to cover collective-bargaining activities that the union supposedly engages in on their behalf. About half the states require agency fees from public-sector workers who choose not to join a union.

Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they’re taking. For example, union-supported “last-in, first-out” rules and seniority pay (as opposed to merit pay) work against talented, young teachers. Moreover, a teacher might prefer higher pay to tenure protections, or greater flexibility over rigid scheduling rules meant to “protect” them from supposedly capricious principals.

A Few Facts on Election Year Nominations and Confirmations to the Supreme Court

Given the “facts” that have been bandied about in the media since Justice Antonin Scalia’s death concerning presidential election year nominations and confirmations to the Supreme Court, I asked Anthony Gruzdis, our crack research assistant for the Center for Constitutional Studies, to do an exhaustive study of the subject, and here, in summary, are the most relevant facts.

It turns out that most election year resignations and deaths were in the pre-modern (pre-1900) era—many in the era before today’s two major parties were established. And the pre-1900 picture is further complicated by several multiple nominations and confirmations of the same person, both before and after the election, so it’s not until the modern era that we get a picture that is more clearly relevant and instructive for the current situation.

Looking at the history of the matter since 1900, then, until last week only four vacancies have occurred during an election year, two in 1916, one in 1932, and one in 1956. (Three more occurred during the previous year, in 1911, 1939, and 1987; the nominees in each case were confirmed, respectively, in February, early January, and early February of the election year that followed.) The first three were filled when the president’s party also controlled the Senate, so that’s not the situation we have now. And when Justice Sherman Minton resigned for health reasons on October 15, 1956, President Eisenhower made a recess appointment that same day of William J. Brennan, Jr., nominating him for the seat on January 14, 1957, for which Brennan was confirmed by voice vote on March 19, 1957. In 1956 the Senate was closely divided with 48 Democrats, 47 Republicans, and 1 Independent. In 1957 it was also closely divided with 49 Democrats and 47 Republicans, although in both cases the Southern Democrats often voted with the Republicans.

Spin Cycle: White House Spins SCOTUS Stay on Climate Plan

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

—-

As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

You Ought to Have a Look: SCOTUS Stays Clean Power Plan, Paris Accord Imperiled, UN 1.5°C Nonsense.

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

The big climate news of the week is, of course, that the U.S. Supreme Court put a stay on the EPA’s Clean Power Plan until the Plan’s detractors have their day in court.

Cato’s Ilya Shapiro summarized the situation succinctly:

The Supreme Court’s stay of the Clean Power Plan is a welcome development. The regulations constitute an unprecedented assertion of agency authority – particularly the dubious invocation of Section 111 of the Clean Air Act to justify regulating power-plant emissions – so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

Lots has been written on it.  In addition to Ilya’s, below is a sampling of others offering good insights. There are many more, and we apologize to those whose comments should have made this list but were left off (through negligence or space).

The Force Against Hawaii’s Unconstitutional Election Awakens

After the Supreme Court blocked Hawaii’s race-based election pending appeal, its organizers—a government contractor named Na’i Aupuni—canceled it and decided instead to seat all the candidates as delegates to a special constitutional convention for the purported new nation of “native Hawaiians.” The plaintiffs have asked the Supreme Court to find the election/convention organizers in contempt of its earlier order. Meanwhile, the appeal of the district court’s earlier denial of an injunction proceeds in the U.S. Court of Appeals for the Ninth Circuit. Cato has joined the American Civil Rights Union on a brief supporting the challengers. We point out that this is the second time that Hawaii has attempted to conduct a discriminatory voter-registration procedure to facilitate a racially exclusionary election. The first time this occurred, the Supreme Court held that such elections violate the Constitution. Rice v. Cayetano (2000). Things are no different this time. The voter qualification requirements here again make eligibility contingent on ancestry and bloodlines, which are nothing more than proxies for race. (There’s a further requirement that voters affirm a belief in the “unrelinquished sovereignty of the Native Hawaiian people,” which is an ahistorical assertion.) Such a discriminatory scheme is per se unconstitutional under the Fifteenth Amendment.

Government Can’t Censor Digital Expression Just Because Someone Somewhere Might Use It for Unlawful Purposes

It’s alas old news when the government couples an imposition on liberty with an exercise in futility—security theater, anyone?—but it’s still finding inventive ways to do so in a nifty case that combines the First Amendment, the Second Amendment, and 3D printing.

Defense Distributed, a nonprofit organization that promotes popular access to constitutionally protected firearms, generates and disseminates information over the Internet for a variety of scientific, artistic, and political reasons. The State Department has ordered the company to stop online publication of certain CAD (Computer-Aided Drafting) files—complex three-dimensional printing specifications with no intellectual-property protection—even domestically. These files can be used to 3D-print the Liberator, a single-shot handgun. The government believes that the files that could be used to print the Liberator are subject to the International Trafficking in Arms Regulations, because they could be downloaded by foreigners and thus are “exports” of arms information that could cause unlawful acts.