Partisanship at the Supreme Court

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This is Radio Atlantic.

I'm Isaac Dover.

June is Supreme Court decision season.

Every Monday this month, we'll be waiting on the biggest decisions from the court this term.

Two of the biggest about including the citizenship question on the census and about whether partisan gerrymandering is constitutional.

Both of these cases ask the same basic question.

How far should partisan politics go?

That question is also being asked of the court itself.

Its year began with the Brett Cabinet hearings, which changed a lot of feelings about what's happening with the justices.

So today, we're discussing partisanship and the Supreme Court.

Will the justices cement election maps and census questions as partisan tools?

And do questions about the court's own partisanship threaten its legitimacy?

With me in studio to walk us through it is lawyer, slate writer, and avid court watcher, Mark Joseph Stern.

Mark, thanks for being here.

Thanks so much for having me on.

So there are two big cases about how we draw the limits on partisan politics here.

Let's talk about the census question first.

Okay.

What is going on in that case?

So the Trump administration wants to add a question to the 2020 census that will ask people whether or not they're citizens of the United States.

There hasn't been one of those questions on the big census that everybody takes every 10 years since 1950.

It is new for our age, and the Trump administration says that it needs it to better enforce the Voting Rights Act to make sure that the votes of minorities and specifically Latinos are not being diluted.

Opponents of the question argue that, in fact, that reason is pure pretext pretext and that what the Trump administration really wants to do is provoke an undercount of Hispanics and immigrants, meaning that a bunch of Hispanics and immigrants won't answer the census because of the question.

Why is that?

Because they're worried about saying they're citizens or not?

Or not, right?

They're worried about if they aren't citizens saying they aren't citizens.

This administration has not been very friendly to non-citizens, particularly undocumented citizens, and because they're afraid that the government might share this information with agencies that will go after them.

There are a lot of Americans living in households or communities with immigrants and undocumented immigrants in particular.

They are afraid that if they answer these questions, that the authorities might come knocking on their doors.

They're afraid that specifically ICE and CBP are going to target communities where a lot of people say that they are non-citizens.

And this is not pure speculation.

So the Census Bureau's own studies and findings have shown that when particularly immigrants and Hispanics are given a census with a citizenship question, they are less likely to respond to it at all.

Aaron Powell, and the question here breaks down to this is about how the federal government allocates resources, so money to communities, but it's certainly about how it allocates congressional districts, which then determines the money that goes to those communities and the kind of vote share that they have.

The argument being for included the citizenship question, if you're not a citizen, then why do you get counted in the district?

And the argument against it is, well, the people are there and they need to be dealt with with the resources that the federal government has proportionately.

Aaron Powell, Jr.: Well, sort of.

But the thing is that the Constitution actually says that the census is supposed to count people, not citizens, but people.

And under the current law, the redistricting process has to count people, not citizens, not voters, but people.

So this argument that has been raised that, oh, well, only citizens should be counted.

They're the ones who matter.

For purposes of the law, that's just flat out untrue.

Now, the Trump administration may want to change the law.

And in fact, some of this information we've seen come to light recently suggests that they may have that in mind, that in the future, Republicans might only want to count citizens or voters, might not want to count non-citizens for the purposes of redistricting, but right now they have to.

So there's a long game and a short game here, unless you believe the Trump administration's reasons.

The short game would be provoking an undercount.

The long game would be sort of setting the stage to remove non-citizens from the redistricting process altogether.

Aaron Powell, Jr.: And the Trump administration has been adamant that there were no politics driving this decision.

That has come into question in the last week or so with a lawsuit and an article that came out that got into the story of Thomas Hoffler.

Yes.

Thomas Hoffler, who was he?

He is now dead.

Yes, he is dead.

May he rest in peace.

He was the Republican Party's gerrymandering guru for many years, decades, in fact.

He really sort of pioneered modern gerrymandering.

He mastered the art of drawing districts along partisan and racial lines in order to dilute votes for Democrats.

He had a hand in some of the country's most notoriously gerrymandered maps, including districts in North Carolina, Texas, Pennsylvania, Wisconsin.

He also traveled the country teaching GOP lawmakers how to draw maps like his so that they could more effectively dilute votes for Democrats.

Aaron Powell, Jr.: And the fact that he's dead is important to this story because what happened was he has a daughter, or had a daughter that the daughter is still around,

who he was estranged with.

Correct.

His daughter went through some of his belongings looking for some property that she had been promised would come to her after his death.

She found a bag of thumb drives.

On those thumb drives was information, documents that seemed to suggest that he was very interested in what the census change on this question would produce in terms of gerrymandering.

And

she turned that information over to some anti-gerrymandering groups, and they found that there were

a lot of similarities in the language and ideas between things that Hoffler had written and things that appeared in government documents, right?

Yes, so she found 18 thumb drives and four hard drives that contained about 75,000 files.

It seems right now to include a bunch of Hoffler's work, not just in North Carolina, not just on census-related stuff, but across multiple states across many years.

And Common Cause, which is a voting rights advocacy group, got a hold of this information.

They plan to use it in a lawsuit challenging North Carolina's legislative map right now, which is an egregious partisan gerrymander.

but they realized that language in this memo that Hoffler had written in 2015 seemed uncannily similar to language that appeared in this letter that was sent in the Justice Department that formed the basis for the Trump administration's justification for the citizenship question.

It turns out the lawyers who are working on the North Carolina case are the same lawyers working on the census case.

So they were able to bring it to court in the census case and say, hey, look, we've got something that looks like a smoking gun proving that the Trump administration was lying.

Aaron Powell, this only came out recently.

It's after the oral arguments, but before the decisions are written.

Is it something that could affect what the justices do here?

It's so difficult to say.

So, you know, the justices already voted in this case.

They're already writing their opinions.

In fact, there's probably a dissent being written as we speak.

This letter, it is a smoking gun because Hoffler wrote about how a citizenship question would essentially aggrandize the power of white Republicans and minimize the power of Democratic voters and minority voters in particular.

But it's not properly before the court.

It's not in the administrative record.

It's not in the evidence the court was given before, right?

So there's...

They read the newspapers, right?

They could see this.

Do they have to ignore it?

Do they have to try to pay attention to it?

How does that work?

So they can do anything they want.

They're the Supreme Court.

Ideally, what they should do is actually dismiss the case before them, send it back down to the lower court, and direct further fact-finding with regard to this letter, right?

And then the case could come back up to them.

But that's not possible here because the government says the census has to be printed in July, there has to be a decision in June, and there's just not enough time for more fact-finding.

So they can take judicial notice of the letter.

It has been filed with them by the ACLU.

They can cite it if they want to, but it is not properly before them.

It would be unusual, not astonishing, and not necessarily improper, but unusual for them to take notice of this letter that's not really in the record they were given.

Aaron Powell, okay, so let's talk about the other case.

There's gerrymandering, which is connected to this, obviously, but is the more immediate question of partisan gerrymandering, which is the drawing of House districts.

We know that how it works is that states are given the number of seats that they're given because of their populations as counted by the census and then allocated.

And then it's up to the states to decide how to draw those districts.

They can draw it in every kind of way, and many of them do.

And this is, for the most part, a partisan process

all around the country.

And

the pushback here is that it shouldn't be a partisan process.

What it leads to is Republicans protecting Republican seats and Democrats protecting Democratic seats, not just in the House, but for state legislatures.

Right, exactly.

That is the challenge.

You know, the Supreme Court has already said that racial gerrymandering is generally unconstitutional, that it violates the Equal Protection Clause and often the Voting Rights Act, but the court has never said that partisan gerrymandering is unconstitutional and provided a test that courts can use to determine when a partisan gerrymander is out of bounds, when it's crossed a constitutional line.

So the question in this case is actually

not just whether partisan gerrymanders are unconstitutional, but whether federal courts have the power, the ability to rein them in or whether this is just the kind of question that federal judges can't deal with, a kind of problem that federal courts can't resolve.

Okay, so what there was a case last year that did not go the way that gerrymandering reform advocates wanted.

There was a lot of skepticism about that case from the anti-gerrymandering world going into it.

Since then,

the change in the court has been that Anthony Kennedy, who

was not one of the allies of the anti-gerrymandering people, has left and been replaced by Brett Kavanaugh.

Does that matter?

Well, so Kennedy was always waffling on this, as he was on so many issues.

He said, essentially, in this 2004 opinion, gerrymandering is probably unconstitutional when it's done along partisan lines, but I'm not sure if there is a test that we can use to determine when it is illegal and when it's not.

So he was never able to come down and say, yes, this is how courts can determine when a partisan gerrymander is unlawful.

And he kind of left it it open.

He left it there when he retired from the court.

We have no idea what Justice Brett Kavanaugh thinks about partisan gerrymandering.

He could theoretically be more liberal on this issue than Justice Kennedy.

He could be more conservative.

He seemed pretty open-minded during oral arguments, particularly in arguments over the Maryland case.

He is a Maryland voter and he lives in one of the Maryland districts that has been affected by Democratic gerrymandering.

And he seemed to express some real disgust with how these lines were drawn in his home state during arguments.

And he seemed to almost be sort of teaming up with Justice Elena Kagan to search for a standard that courts could use to say when partisan gerrymanders truly do cross that constitutional boundary.

And so where does that leave us?

In the dark until the opinion comes down.

I mean, I think it's absolutely possible that there could be a decision five to four or even six to three with Chief Justice Roberts joining, saying that there are some gerrymanders that go way too far, particularly when there's smoking gun evidence that partisanship was the overriding factor in drawing the district lines.

But I also think it's quite possible and perhaps more likely that there will be a five to four decision locking partisan gerrymandering claims out of court forever, that the court's conservative bloc is going to say, we can't deal with these.

We are not competent to deal with partisan gerrymandering.

It's not in our purview.

It's not something that we're competent to do and just say signara to all the gerrymandering plaintiffs.

Where does that leave gerrymandering?

It leaves it in the state courts, really, because there has been a lot of reform on the state level here.

This is something that Justice Gorsuch actually pointed out during oral arguments.

Now, a funny thing about that is that a couple years ago in this Arizona case, four conservative justices basically said that states cannot reform partisan gerrymandering themselves.

But Justice Kennedy did swing left there.

So for now, states can create independent redistricting commissions.

They can stop the legislature from drawing these lines.

They can put it in in the hands of nonpartisan citizens.

And also, state Supreme Courts can rein in partisan gerrymandering.

Just last year, the Pennsylvania Supreme Court struck down the state's congressional map as an unconstitutional partisan gerrymander, saying it was illegal under the state constitution.

State Supreme Courts have final say over their own state constitutions, so there's not much that the U.S.

Supreme Court can do about decisions like that.

Aaron Powell,

both of these cases are about partisan politics and what are ideally nonpartisan institutions.

That's about the census and election maps.

Interestingly, they are being heard by the Supreme Court, which is supposed to be a nonpartisan institution in the way that we usually think about it.

And many people see at this point as becoming a partisan institution.

How much of the partisan background of these justices is influencing what's going to happen with the partisan nature of these cases?

Isn't Isn't that the $100,000 question here?

You know, I think that I don't think any of the current Supreme Court justices are actual

hacks or that they are corrupt, that they are voting in a way that they think is just designed to further Republican goals, right?

I don't think that Chief Justice Roberts secretly gets on the phone with Donald Trump and says, how do you want me to vote?

But I do think that the conservative justices just tend to be more trusting of Republicans, and in particular, of Donald Trump, than the liberal justices.

And as we saw last year in the travel ban case, the conservative justices are more willing to buy the Republican Party line, to accept what is generally considered pretextual justifications for Trump's actions, whereas the progressives are very skeptical.

And I think that is informed by party background.

I think it's just undeniable that when you are an establishment conservative and a movement Republican, as people like Roberts and Kavanaugh are, you're going to be more willing to believe what Trump says.

You're going to be more generous toward the Trump administration.

And that's a real problem in the census question, in particular, because I do think that the court's prestige and almost the court's legitimacy are on the line there.

We're going to take a quick break and be back with more with Mark Joseph Stern.

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And we're back here on Radio Atlantic with Mark Joseph Stern, slate writer, court watcher, lawyer.

So the Kavanaugh hearings were a major moment politically for the country, a very divisive moment.

They meant that when the hearings were done in September, right after the court came back into session in October, Kavanaugh was seated as a new justice.

What has that done to the court?

Is the court affected by that kind of partisan argument that happened there, by the questions that come up about a justice and his temperament and how much he was connected to President Trump and how much he was being defended by Republicans and attacked by Democrats?

So on the very first day that Justice Kavanaugh sat on the bench for oral arguments, he was seated next to Justice Kagan, one of Obama's appointees, and they were chatting before arguments.

They were sort of laughing, making little jokes, having a grand old time.

And I don't think that that was an accident.

I think that a majority of the justices, including all of the liberal justices, really truly value the court's prestige and legitimacy and do not want Americans to view the court as an illegitimate institution or a tool of partisanship.

And so I think a majority of the of the court, including all four liberals, have worked hard to act as if nothing major has happened on the political scene with regard to the court, that there hasn't been some big rift, that the court has beclowned itself or

diminished its own legitimacy.

And you saw this effort with Chief Justice Roberts and Justice Kavanaugh joining the liberals to kind of swat away some really big cases, this case involving Medicaid reimbursements and abortion, cases involving a lawsuit involving climate change, some of the early skirmishes around the census citizenship question, the six justices sort of in the center, although Roberts and Kavanaugh are not centrists, they were trying to push all that away to maintain the court's ability to stay above partisanship.

But that's all ending now because it's June and every single June, the court has to decide cases with a real partisan valence.

And so I think almost all of the justices, if not all the justices, believe the court is above partisanship.

But as these five to four cases start raining down, they do lose their faith in their colleagues a little bit.

You start to see harsher rhetoric and you start to see the fights kind of boil over and maybe some implications of not outright partisanship, but like motivated reasoning come to the surface in some of the fiery dissents.

And meanwhile, this is all happening against the backdrop of Democrats, especially Democrats running for president, talking about changing the Supreme Court, changing the number of justices, changing to have term limits on the court, all these ideas that are going strong in the Democratic presidential primary.

Does any of that influence what is going on in the court?

Do they pay attention to things like that?

They all pay attention to it, whether they say they do or not.

Some more than others, but

you know.

Justices like Elena Kagan and Sonia Sotomayor, they read the news.

They read the real news.

You know, like they are press savvy.

They're paying attention to all this.

I think so is Chief Justice Roberts.

The conservatives like Justice Thomas, Justice Alito, they have said that they don't really really pay attention to the real news.

I mean, they may read some very conservative outlets, especially opinions that might praise them, but they aren't out there reading lots of criticism of themselves.

And Justice Clarence Thomas has said that like the happiest day of his life was the day he canceled his Washington Post subscription.

So for some of them, they just kind of ignore all of that chatter.

And I think Chief Justice Roberts is not one of those.

He pays attention to the news, and he is really worried about the court's legitimacy at all times.

This has been talked about endlessly with regard to his more liberal votes, especially his votes in the Obamacare cases, right?

And so I think if the talk of expanding the court or packing the court has an effect on anyone, it probably would be Roberts.

And I think that's partly the design of this court packing scheme.

I think that candidates who tout it or sort of chat about it like a possibility, they want Roberts to hear them and they want him to swing a little more left to give liberals a few more wins at the court so the Democrats don't come to view it as hopelessly partisan and maybe abandon plans to pack it.

Theoretically, that was what was happening in 2015 when John Roberts provided the vote that made the Obamacare decision, upholding Obamacare 6-3 instead of 5-4, that he was trying to not make it seem completely partisan.

But does Roberts care about what the people who say that they want this to be how he acts?

Does it matter to him?

He's an institutionalist.

He cares about the way the Supreme Court is seen, but on the other hand, he cares about the issues that he cares about and the positions that he has on those issues.

Right.

And so there are some issues he simply won't compromise on, right?

So race blindness, right?

A case like Shelby County gutting the Voting Rights Act, gutting pre-clearance by the feds for historically racist jurisdictions, right?

That was a decision that really hurt the court's institutional prestige and legitimacy, in my view.

It was a horrible blow to voting rights around the country, and Roberts didn't care, or at least if he cared, his fears were outweighed by his desire to kill this part of the Voting Rights Act that he had hated forever.

Affirmative action is similar, and a lot of these voter suppression cases similarly.

He just doesn't believe that racism is a big problem in the U.S.

And he never believes the government should take account of race, particularly when it could help minorities.

So he's not going to compromise there, but there are cases he cares about a little less.

So he's not a commerce clause extremist, by which I mean he's not super eager to roll back the size and scope of the federal government to like the pre-New Deal era.

He doesn't want to undo everything that the court did under FDR, expanding government's ability to regulate things like labor, markets,

commerce.

You know, he's willing to accept that the court did what it did.

We're here where we are.

We don't need to reverse all of that.

And that helps to explain his vote in the first Obamacare case.

Trevor Burrus, Jr.: So I want to just come back to the cases in a moment, but you talked about how when the beginning of the court session, when Kavanaugh was there and having a good time, did the justices get along?

Is it possible for them to look at what Brett Kavanaugh did in those hearings and say, okay, even if we agree with him, don't agree with him, if we like the way he behaved, didn't behave?

There was a lot of questions about his approach to it and whether it was judicial temperament.

Is he just one of the justices now?

He's in the club.

That's it.

So imagine you're introduced to a new colleague and this new colleague is maybe irritating, may do things that really piss you off.

And you are told that you will serve with this colleague for the next 45 years of your life.

I think that you would do what was necessary in your mind to make peace with that fact and to get along with that person.

That's the dynamic we're seeing at the Supreme Court.

A new Supreme Court justice will be serving with these people for a really long time, especially the younger ones like Justice Kagan.

She's going to be serving with Kavanaugh for decades.

Same thing with Chief Justice Roberts.

They're going to be together for a really long time.

They're going to have to deal with each other on a near daily basis for much of the year.

They don't want to be constantly squabbling.

They don't want to be tense around each other.

They want to be able to get along.

So I think they do try to absorb new justices as if they're normal, as if nothing big happened, even in the case of Kavanaugh, as if there haven't been accusations of sexual assault.

They want to be able to work with this guy, treat him like they would any other colleague, and I think that helps to explain why Justice Kagan was chatting with him like an old dear friend.

The justices also like to say that they can disagree without being disagreeable, that they can scream at each other in opinions, but still get along behind the scenes.

This term is really testing that, especially in some of these death penalty cases.

There have been these fights back and forth that have dragged on for months where the justices accuse each other of being in bad faith, of being sympathetic to murderers, of being intolerant to religious minorities on death threat, all kinds of crazy stuff.

And they really duke it out.

But apparently they still get along.

And when I see them walk on and off the bench, they're all chatting, patting each other on the shoulder.

They do seem to basically be pals.

And the famous example is Ruth Bader Ginsburg and Anton Scalia being buddies and going to the opera together and bonding over their love of opera, even though they could not be more

different ideologically and different in the way that they voted on cases.

But it does seem like that may, much like we've seen in Congress where there used to be Republicans and Democrats who'd have dinner together.

And

now that's so rare that partisanship at the court maybe is meaning that those kinds of relationships break down a little bit more, even though they are

stuck together for 45 years.

Yeah, I mean there's no equivalent of Ginsburg Scalia right now, although I will say Justices Sodomayara and Gorsuch, who could could not be more different on a lot of issues, have really kind of teamed up on some criminal justice stuff.

They seem to get along well.

They sit next to each other.

They seem to kind of like each other.

So perhaps that is a blossoming friendship that will replace the Scalia-Ginsburg dynamic.

I don't know.

They'll have to find that they connect over country music or something.

Maybe skiing.

I don't know.

I can't imagine.

The looming thing about the Supreme Court right now is that

a lot of people think that there will be an abortion case that comes before the court at some point soon.

There were

last week big protests in front of the Supreme Court already from abortion rights activists saying, get ready, it's coming,

with a lot of politicians going and

joining those protests as they were going on then all over the country.

With what happened with Kavanaugh and how he came into the court, do you think there's any sense of the politics, perception of politics, of waiting a little while from those hearings to get to doing an abortion case, even though they'd need to wait for a case to come to them that they would take?

Yes.

The majority is trying to put off an abortion case and also any case that is sort of related to abortion.

Why?

Because they're afraid of the backlash and the publicity.

The Supreme Court justices don't want to be recognized in public.

They don't want to be on the nightly news.

They don't want to be in the news at all for the most part.

Like, they don't want all of the attention and scrutiny that comes with an abortion decision.

And of course, any abortion case is going to bring back up all of the Kavanaugh accusations.

It's going to be like ripping off the band-aid on a wound that is still festering.

It's going to be bad.

And a majority doesn't want that.

Now, justices Gorsuch, Alito, and Thomas, they're ready for it because they've devoted their careers to overturning Roe.

That's what they are here to do.

They're ready for it.

So that means that Roberts and Kavanaugh of the conservative justices are the ones that you think are not there for it.

Well, I think that's one of their goals.

I think they would both love to see it happen, but

it's not so pressing for them the way it is for the others.

Now, Kavanaugh has cast already a few anti-abortion votes and would have let Louisiana enact this trap law, this attack on abortion clinics that's nearly identical to this law that the court struck down a few years ago.

So Kavanaugh may be itching for it more than I'm giving him credit for.

But right now, he and the chief do kind of seem to be taking a step back and saying, like, however much we may want this personally for the good of the court, let's see if we can put it off.

Let's end with this.

The

court is right now in the background of the presidential election of the politics going on, but Democrats and liberals overall have been worried about Ruth Bader Ginsburg's health, her age.

There is a sense that maybe she will be around for a long time and maybe she won't.

It is hard to miss how much she's become identified with Democratic politics.

I saw an email from the group of the Senate Democrats, their political committee over the weekend that said Ruth Bader Ginsburg wanted you to see this or something like that, that was quoting from her testimony in her confirmation hearings about abortion and that it's not an issue that she thinks is up for debate.

It's up to the woman very staunchly putting herself as a defender of Roe v.

Wade.

Meanwhile, last week you had Mitch McConnell say in an offhand comment at an event that

if a vacancy were to come about in the Supreme Court in the next year, he would fill it and not do what he did in 2016 when he kept the seat open until the end of the presidential election.

If there is a vacancy, whether it's Bette Ginsburg or anyone else,

what do you think that would do to the Supreme Court?

Destroy it, basically, because I think that Republicans will fill it

pretty easily because they control the levers of power.

And I think that much more so than with Gorsuch or Kavanaugh.

Almost all Democrats will view that justice as illegitimate because this will be not just hypocrisy, but a total betrayal.

And it will prove that one party not only views the Supreme Court as an instrument of its own political goals, but has been able to put sort of lackeys on the court, this is how people will view it, who are there to further the GOP's goals, right?

Like Gorsuch is there instead of Garland, Kavanaugh is there, and then this future justice will be there.

There will be a trio of justices who are put there by Republicans to do Republicans' bidding.

I think that is how probably a majority of Americans will view the court.

Majority of Americans or majority of Democrats.

I think all Democrats and a lot of independents, because I, well, I can't speak for them, but I have to imagine even if you supported McConnell's blockade in 2016, how could you then turn around and support him putting someone on the court in 2016?

He said it was a principle then, even though many people thought that that was a way of saying it, but it would reveal that it was not a principle.

Exactly.

Exactly.

It would be beyond hypocritical.

And I think a lot of Americans would view the court as...

absolutely illegitimate.

And I think court packing would become a very common refrain among Democrats.

And I think it would really put the issue to Democratic lawmakers.

I think it would become a huge campaign issue, packing the courts, fixing this imbalance, adding seats, doing whatever is necessary to reverse McConnell's damage.

Okay.

Well, Mark Joseph Stern, thanks for walking us through this.

Thanks so much for having me on.

That'll do it for this week of Radio Atlantic.

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