The OLD Philosopher – John M. Miller
On June 27, 2019, the US Supreme Court announced two major decisions. The first one was okay, but not great. They temporarily blocked the Census Bureau from asking a citizenship question on the 2020 census form. Such a question has never before been asked. However, the matter can still be challenged in court before the census forms are actually printed later this year, and subsequent court decisions might allow a citizenship question. That would be a brazenly partisan move which can only benefit the Republican Party, for reasons I shall not take space to explain. I trust, or at least hope, that you already understand why it is so baldly partisan.
The primary purpose of this essay is to say that the supremes’ second conclusion is a juridical atrocity. In a typical 5-4 split on such vital issues, the court decided it is valid for state legislatures to utilize a clearly unethical practice that has evolved in various states over the past two or more decades. State governments have drawn the boundaries of federal and state legislative districts with the obvious intention of guaranteeing that voting in those districts shall favor one political party or the other.
The issue before the court was based on the legislature of North Carolina drawing lines to favor Republicans and the Maryland legislature taking a similar action to favor Democrats. Speaking for the five Republicans on the Supreme Court who were nominated by Republican presidents, Chief Justice John Roberts said the court could not prevent the legislatures of the fifty states from following this practice. To do so, he said, would force courts to become perpetually involved in line-drawing.
As the British would say in such an instance, rubbish! (Americans use a much coarser word in especially egregious disputes.)
This is a classic example for when the Supreme Court should create a law from the bench, as it has done innumerable times through 230+ years. Both conservatives and liberals loudly harrumph that should never be done. Their opinion, however, always depends on the particular nature of particular issues, and they always harrumph when their side loses.
In this particular instance, the issue is clear: it is patently unethical for a large majority of the members of either party in any state legislature to guarantee their own party shall almost certainly win seats because of the way they determine the boundaries of voting districts. Sophisticated computers can show how specific lines will advantage a particular party. Thus lines can be drawn for almost certain electoral victories until the other party achieves a statehouse majority.
This practice is an infuriating example of “the tyranny of the majority.” It is obviously unjust for any legislature to exercise such an unfair use of power. It erodes confidence in the equity of government, and negates the viability of the votes of nearly half the electorate of any state.
This Supreme Court decision is yet another of countless examples of injustice that become virtually enshrined by the uniquely American notion of “states’ rights.” States should have some rights in contradistinction to the federal government, but obliterating particular votes by state decrees definitely should not be one of them.
The five Republican justices will rue the day they avoided the opportunity to prevent state legislatures from using unjust power to decide congressional district boundaries. Some day in the future there will five or six Democrats on the court. They may do the same thing the Partisan Five did, except in an opposite direction. And thus unfair partisanship shall continue to have judicial sanction. John Roberts has said he wants a nonpartisan court. With cowardice, he backed away from assuring nonpartisanship on an exceedingly important issue.
John Miller is Pastor of The Chapel Without Walls on Hilton Head Island, SC. More of his writings may be viewed at www.chapelwithoutwalls.org.