Swordsmyth
10-03-2017, 08:54 PM
The plaintiffs offered a three-part test (http://www.brennancenter.org/sites/default/files/legal-work/Gill_AmicusBrief_BrennanCenterforJustice_InSupport ofAppellees.pdf): single-party rule, single-party slanted districts, and statistically lopsided results. But that third part is particularly nettlesome. Much of the Court’s time was spent dickering over terms like “efficiency gap” and “symmetry” and where the line should be drawn.
“This is a bunch of sociological gobbledygook,” complained Chief Justice Roberts. Wisconsin’s map has an “efficiency gap”—which, basically, measures the difference between its districts and fair ones—of 7%. That’s bad. But what about 5%? Where is the magic number?
Or, in Justice Gorsuch’s damning words, “What are the numbers that we are supposed to read into the constitution?”Worse, the lower court opinion actually used three different statistical analyses. “This is like my steak rub,” the famously folksy Gorsuch offered. “There’s a little bit of this, and a little bit of that, but I’m not going to tell you how much of each.”
If anyone was worried that Gorsuch’s aw-shucks manner was just a show for his senate confirmation (https://www.thedailybeast.com/neil-gorsuchs-charm-offensive-confuses-bias-with-ideology), rest assured—this is who he is.
Well, that’s Gorsuch and Roberts. (True to form, Justice Gorsuch hinted he may outflank the entire court on the Right (https://www.thedailybeast.com/neil-gorsuch-drives-the-supreme-court-hard-right-on-religion), and say it shouldn’t even be hearing this kind of constitutional challenge.) And Alito, who seemed even more skeptical. And Justice Thomas, who, silent as always, will surely follow Justice Alito just like he followed the late Justice Scalia. (It appeared that Justice Thomas fell asleep at one point during the argument.)
Meanwhile, Justices Kagan, Sotomayor, Breyer, and Ginsberg all said that if nothing is done, trust in democracy will erode. If you know your district is a sure red or blue one, what’s the point of even voting? And if a minority party is guaranteed a legislative majority for years to come, how is that democratic?
In other words, Gill will come down—like so many other cases—to Justice Kennedy, who seemed to well encapsulate the conundrum facing the Court.
On the one hand, Justice Kennedy is not afraid of muddy standards and case-by-case reasoning. In numerous contexts—abortion and affirmative action, for example (https://www.thedailybeast.com/the-right-wins-as-it-loses-on-affirmative-action-at-the-supreme-court)—he has written opinions that decline to espouse a clear, bright-line rule but basically say “I know it when I see it.” If he applies that method of reasoning (critics call it a lack of reasoning) to this case, he should throw out Wisconsin’s map.On the other hand, this is messy even for Justice Kennedy. As Justice Alito pointed out, the “efficiency gap” metric is only three years old, and it leads to numerous “false positives,” finding electoral maps to be biased even when they were actually created by bipartisan commissions. Social science may not be gobbledygook, but it’s not as precise as, say, geology. Does it really justify a court throwing out the product of elected legislators?
On the courthouse steps, there were chants of “this is what democracy looks like!” and, more cleverly, “we’re tired of your tampering / stop your gerrymandering.” Former governor Arnold Schwarzenegger urged the Court to “Say Hasta La Vista to gerrymandering.”
More at: https://www.thedailybeast.com/chief-justice-roberts-calls-proof-of-wisconsin-gerrymandering-gobbledygook
“This is a bunch of sociological gobbledygook,” complained Chief Justice Roberts. Wisconsin’s map has an “efficiency gap”—which, basically, measures the difference between its districts and fair ones—of 7%. That’s bad. But what about 5%? Where is the magic number?
Or, in Justice Gorsuch’s damning words, “What are the numbers that we are supposed to read into the constitution?”Worse, the lower court opinion actually used three different statistical analyses. “This is like my steak rub,” the famously folksy Gorsuch offered. “There’s a little bit of this, and a little bit of that, but I’m not going to tell you how much of each.”
If anyone was worried that Gorsuch’s aw-shucks manner was just a show for his senate confirmation (https://www.thedailybeast.com/neil-gorsuchs-charm-offensive-confuses-bias-with-ideology), rest assured—this is who he is.
Well, that’s Gorsuch and Roberts. (True to form, Justice Gorsuch hinted he may outflank the entire court on the Right (https://www.thedailybeast.com/neil-gorsuch-drives-the-supreme-court-hard-right-on-religion), and say it shouldn’t even be hearing this kind of constitutional challenge.) And Alito, who seemed even more skeptical. And Justice Thomas, who, silent as always, will surely follow Justice Alito just like he followed the late Justice Scalia. (It appeared that Justice Thomas fell asleep at one point during the argument.)
Meanwhile, Justices Kagan, Sotomayor, Breyer, and Ginsberg all said that if nothing is done, trust in democracy will erode. If you know your district is a sure red or blue one, what’s the point of even voting? And if a minority party is guaranteed a legislative majority for years to come, how is that democratic?
In other words, Gill will come down—like so many other cases—to Justice Kennedy, who seemed to well encapsulate the conundrum facing the Court.
On the one hand, Justice Kennedy is not afraid of muddy standards and case-by-case reasoning. In numerous contexts—abortion and affirmative action, for example (https://www.thedailybeast.com/the-right-wins-as-it-loses-on-affirmative-action-at-the-supreme-court)—he has written opinions that decline to espouse a clear, bright-line rule but basically say “I know it when I see it.” If he applies that method of reasoning (critics call it a lack of reasoning) to this case, he should throw out Wisconsin’s map.On the other hand, this is messy even for Justice Kennedy. As Justice Alito pointed out, the “efficiency gap” metric is only three years old, and it leads to numerous “false positives,” finding electoral maps to be biased even when they were actually created by bipartisan commissions. Social science may not be gobbledygook, but it’s not as precise as, say, geology. Does it really justify a court throwing out the product of elected legislators?
On the courthouse steps, there were chants of “this is what democracy looks like!” and, more cleverly, “we’re tired of your tampering / stop your gerrymandering.” Former governor Arnold Schwarzenegger urged the Court to “Say Hasta La Vista to gerrymandering.”
More at: https://www.thedailybeast.com/chief-justice-roberts-calls-proof-of-wisconsin-gerrymandering-gobbledygook