“Mindlessly Literal Reading Loses Again; This Supreme Court decision is a dig at Bush v. Gore.”

Here’s my piece at Slate on today’s AZ redistricting ruling from the Supreme Court.  It begins:

The Supreme Court ended its term Monday with another major rejection of conservative attempts to use wooden, textualist arguments to upset sensible policies. The result in Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the use of independent commissions to draw Arizona’s congressional districts, is a big win for election reformers and supporters of direct democracy. The Arizona decision also undermines the strongest conservative argument in favor of George W. Bush in Bush v. Gore, the case that handed him the 2000 presidential election.

Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

But while Roberts was willing to be less than literal in the Obamacare case in order to further the obvious purposes of the statute, he was not so flexible in the Arizona case. At issue in Arizona was whether Arizona voters could take away the power to draw congressional districts from the self-interested and partisan Arizona Legislature and put it in the hands of an independent redistricting commission. The Constitution’s Elections Clause vests in each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override. In some earlier cases, the Supreme Court had rejected narrow readings of the word legislature, for example by letting the people use a referendum to review congressional redistricting plans from a legislature. Roberts said today that cutting the legislature out entirely violated the Constitution. “What chumps!” he declared sarcastically of those who believed the word legislature should be interpreted literally.

But the majority, in an opinion by Justice Ruth Bader Ginsburg joined by the court’s other liberals and Justice Anthony Kennedy, rejected Roberts’ narrow reading. Ginsburg said the purpose of the Elections Clause was to make sure that Congress could override state legislatures if they were too self-interested; the purpose was not to empower legislatures over their own people. And she wrote that the initiative provides an important way for voters to deal with partisan gerrymandering and other problems where legislators pass rules to benefit themselves and their parties rather than the democratic process as a whole. The ruling was especially important because the court, thanks to the vote of Kennedy, won’t directly police partisan gerrymandering.

Kennedy joined in this decision likely in large part because of his experience as a native of California, where he had seen the initiative process work to bypass legislative self-interest. His endorsement came as somewhat of a surprise because he seemed to be attracted to the textualist argument at oral argument. Likely by the time of writing the decision, he realized that a narrow textualist ruling would be a disaster for the democratic process.


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