State Courts, Voting Maps, and the Supreme Court

On today’s episode, Sarah and David spend serious time discussing the Supreme Court’s latest voting ...

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On today’s episode, Sarah and David spend serious time discussing the Supreme Court’s latest voting rights decision, then they launch into their long-awaited, much anticipated analysis of Ketanji Brown Jackson’s “most controversial” opinion (spoiler alert: it’s not that controversial). They end with a chat about free speech on campus and why the culture matters.

Show Notes:

–Revisiting the History of the Independent State Legislature Doctrine

–Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish

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  1. Avatar photo
    PaulH

    As a strong advocate of free speech, I don't understand the argument made by Sarah and David that anti-CRT laws or the Florida law undermine a culture of free speech. The argument seems to be that if the strictures were applied to universities they would be unconstitutional. That is true but irrelevant. Any K-12 curriculum if applied to universities would be unconstitutional; for example, requiring that certain texts be read or certain concepts be discussed would be unconstitutional. And state laws are full of prescriptive guidance like that. So how are the anti-CRT laws any different conceptually?

    Sarah says that she does not think that gender identity needs to be taught in K-3. That seems sensible. Why can't the state have a K-3 curriculum that excludes discussion of gender identity? Just like there are state laws that exclude the teaching of creationism. From a free speech perspective, there is no difference.

    There may well be problems with the scope and drafting of these laws. But when there are groups who are actively seeking to push the 1619 project and other CRT-based narratives into the schools, why is ii inappropriate for the state to say that those things should not be taught? Or, for example, in California, to say that they should be taught?

    Once David and Sarah concede, as they do, that they K-12 curriculum is not a free speech zone and that, indeed, that state has a legitimate interest in defining what is taught, then I can't understand a principled objection to laws that implement a particular perspective regarding what should be taught.

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    Sabrina Dalton

    Question for you all. It has always been my general understanding that cases get their names from the two parties bringing the suit (Im not a lawyer or law student, just a legal fan, so forgive me for not knowing the technical names) or a pseudonym if a party wishes to remain anonymous ( US v. Doe for example). My husband has been following a case that recently reached a plea deal but the case used the defendants middle name rather than his last name. The case is United States v. Brent and was brought in the NM district court. The defendant's last name is Justice. I guess US v. Justice would have been a bad look and could have been easily misconstrued but the change to the middle name rather than the last name piqued my interest. Is there a hard and fast rule on how cases are named or is it more flexible?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      There's def a rule...and it should use last name. I just loooked up the case and you're right. So I'm just as confused as you are! https://casetext.com/case/united-states-v-brent-2

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  3. Brendan

    A big part of Kentanji Brown Jackson's "controversial opinion," seems to be that she hasn't had as many opportunities to issue controversial opinions. Given the political pressures to appoint younger justices to the Supreme Court and to find candidates without controversial opinons for the confirmation hearing, what should the offsetting qualification demands be? In this case, I believe she is qualified, as was Amy Coney Barrett, but it does seem like a real question. How do we measure if a person is qualified, especially if we follow an originialist understanding that a Supreme Court Justice should be a specialist in discerning the original public meaning of a law? Without this answer, it seems as if the remaining possible criteria, Ivy League education, etc. become more ingrained. And so we'll never get that trial attorney experience that David wants.

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    Andrewabranch

    So "free" elections is the *only* textual justification for a State Supreme Court literally *drawing its own maps* for kicks? I was hoping y'all would address the NC situation because I don't have a lawsplainer podcast at the state level to tell me whether this was a textual decision or not. No one I could trust to tell me this was, say, the right decision even if they didn't like the outcome.

    I am sufficiently convinced that the NC Supreme Court was full of ****

    At least I apparently land now in a seat that is no longer safe D.

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    Sully

    So I've got a question completely unrelated to any of these topics but more about the makeup of the circuit courts more generally.

    How is it that circuits come to have such well known "personalities"? Would there be a long term incentive for a Republican president to nominate judges that would moderate opinions from the 9th circuit or vice versa for a Democratic president on the 5th? What are the structural reasons why courts that should, at least in theory, be on equal footing have such differing judicial philosophies?

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    Patterico

    Interesting that you both think KBJ refusing on the Harvard affirmative action case is a no-brainer. Before I looked into the history of recusals and non-recusals I likely would have agreed, but in a world where Justice Breyer serves on the commission that writes the Sentencing Guidelines, and then rules on the constitutionality of those guidelines, or where Kagan rules on the ObamaCare cases after serving as the Solicitor General (an office charged with defending that law), I would be surprised if KBJ recused *assuming* that she had no substantive input into admissions policy while serving on the Oversight Board.

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    Young Riprock

    I'm not with you guys on the North Carolina state legislatures argument, or the Louisiana argument for that matter. From my perspective, enacting a state constitutional provision is a legislative action. In North Carolina, "the General Assembly first passes a law by a three-fifths vote of the members of both the House and Senate." I don't read Article I, Section 4 to mean that the enactment of time, places and manner of holding elections to create or require a special legislative process specifically for congressional elections. If a state wants to constitutionalize those procedures, that is fine. Similarly, if the state constitutionalizes an executive veto as part of the legislative process, that is also fine.

    The problem here is that the North Carolina Supreme Court's Order (opinion still forthcoming, I think) appears to be a spurious interpretation of the State Constitution, asserting a partisan gerrymander violates "the free elections clause, the equal protection clause, the free speech clause and the freedom of assembly clause." Contrary to David and Sarah's discussion, the order doesn't seem to analyze the "free elections" provision other than concluding it is clearly violated. The closest thing it gives to a go is an equal protection argument. The analysis isn't very strong, North Carolina as has Anderson-Burdick test Blankenship v. Bartlett, 363 N.C. 518, 525, 681 S.E.2d 759, 765 (2009). The order also cites a completely inapplicable decision regarding a whole-county constitutional provision which is partially preempted by state law. Stephenson v. Bartlett, 355 N.C. 354, 377, 562 S.E.2d 377, 393 (2002). But really nothing that indicates that Section 19 isn't coextensive with the 14th Amendment Equal Protection clause.

    But all that doesn't matter worth a nickel. The North Carolina Supreme Court is the absolute final word on the interpretation of the North Carolina Constitution. This is none of SCOTUS' business. Stay denied and it should be cert denied as well.

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  8. AHenry

    David is wrong about North Carolina and Purcell. Once a case reaches the Supreme Court there is no way federal judges cannot decide what will happen in a state. So Purcell is moot.

    Federal judges decided that the redistricting map of the state supreme court should be used instead of the legislature's map.

    There is no way for the federal courts to not determine what will happen in a state once an appeal reaches the federal level.

    Now, is it better to let seven people decide the outcome or the 170 in the general assembly? At least North Carolina elects its justices.

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    Doug Herbert

    This may perhaps be even more off-topic than a frolicsome detour, but I wonder whether Sarah and David have checked in with the Krause Lawdog law firm in Ocean Springs, Mississippi for their considered opinion of the Naw'Dog Doctrine.

    It seems to me that if you got the Lawdog to endorse the Naw'Dog Doctrine, that would be an important precedent.

    https://www.flickr.com/photos/mississippi_snopes/51933525395/in/dateposted-ff/

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  10. Nancy Lippincott

    Should rules about free and fair elections degenerate into competitive intellectual games over independent state legislature doctrine? There are real voters’ rights involved and genuine principles about free and fair elections. How did these get left out of the conversation?

    The problem with district maps is that they are drawn by legislatures only in the most technical sense. Actually, they are drawn by self-interested, private groups of citizens called political parties and drawn entirely for private gain. The problem posed by these legislative maps is that they are permitting private interests to dominate public good. If legislatures fail to abide by their public duty, citizens must have recourse to hold them accountable. Hence, for example, independent map drawing commissions. Or submitting maps to judicial review, even to the point of overruling and redrawing what amount to usurpations of legislative power to consolidate private power.

    How do you intend to hold public servants accountable for serving public interests? I doubt that the founders intended vesting power in private political parties. Yet that is what we have. In Ohio, where we live, the voters voted into our Constitution a reform process requiring fairer districts. The Republican Party openly flouts the Ohio Constitution. The State Supreme Court denies their maps, but they refuse absolutely to be fair-minded and are behaving solely on self-interest. How does the independent state legislature doctrine justify overlooking state constitutions, fair play, voters’ rights, and the principle of accountability? Thank you for showing me that I am in the camp of Vikram Amar, Akhil Amar, and Haywood Smith.


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