The U.S. Supreme Court last week heard oral arguments in an important case involving federalism and election regulation, Arizona Legislature v. Arizona Independent Redistricting Commission. As I have explained in a two-part series of columns (beginning with this one), Arizona is one of only two states (California being the other) where voters—responding to state legislatures’ tendency to engage in problematic gerrymandering—passed an initiative giving the job of drawing congressional districts to an independent redistricting commission (IRC) instead of the regular state legislature. The elected Arizona legislature brought a lawsuit and appealed the lower court ruling to the Court, arguing that the so-called Elections Clause, Article I, section 4 of the federal Constitution, which gives power to undertake districting in the first instance to the “legislature” of each state, prevents the people of a state from divesting the elected state legislature of district-drawing power.
One Generally (and Recurringly) Surprising Aspect: Federalism Inversion
Many aspects of the oral argument weren’t shocking. I continue to believe, for reasons I explained in the earlier column, that the challenge to the IRC is flawed, but many analysts anticipated that the more conservative Justices would be sympathetic to the arguments made by the elected legislature, which is being represented by former Bush Administration Solicitor General Paul Clement, and these Justices did seem to be. On the other hand, some liberal Justices generally seemed more receptive to the arguments in favor of the IRC, made by its lawyer, former Clinton Administration Solicitor General Seth Waxman. Though expected by Court watchers, this coalitional breakdown is itself surprising in at least one historical respect: the liberal Justices seem more inclined to favor “states’ rights” by giving states latitude to experiment with different modes of district drawing, while the conservative Justices seem disinclined to permit states free reign. In the 1980s and 1990s, conservative Justices were the ones who generally thought the federal Constitution allowed for broad state experimentation, and the liberals thought that states did not have as much running room. But beginning with Bush v. Gore, it is now hard to know how the conservative/liberal framework (which is, of course, overly simple but nonetheless somewhat useful) maps onto federalism matters. We see the same potential complexity in the pending Obamacare case, King v. Burwell, where liberal rather than conservative Justices will likely construe the Affordable Care Act (Obamacare) in a particular way so as to avoid imposing costs on states that might not have been fully aware of the potential consequences of their decisions not to set up their own healthcare exchanges.
A Surprising Inattention to Standing
In a few other respects, though, the oral argument in the Arizona case was surprising by any standard. For one thing, the Court included in the grant of review a question of whether the elected legislature had standing to sue (and the matter was briefed), yet the Justices asked no questions of Mr. Clement about whether his client did enjoy standing. There were some standing questions asked of the lawyer representing the United States (which supported the IRC as an amicus in the case) when he said he thought the elected legislature lacked standing, but one would think that if there is a question raised in a case about the plaintiff’s standing, the Justices would ask the lawyer representing the plaintiff to explain why the Court can hear the case. The burden to establish standing is on the party seeking to invoke federal judicial power, and yet the Justices gave Mr. Clement a pass on this in oral argument, even though the standing question is far from easy. (For an explanation of why the standing question is a complex one, readers may want to consult an earlier Verdict column focusing on that question).
And when they did engage in the standing analysis at all, the Justices seemed not to know what they themselves had said in past standing cases, including a particularly relevant one. Justice Kennedy, in questioning the lawyer for the federal government, intimated that the Court’s cases do not say that just because another plaintiff might be a better candidate to bring a lawsuit, the Court should deny standing to the party actually in front of it. And the federal government’s lawyer acknowledged that the Court often says close to the opposite—that the “even if [the Court’s rejection of standing in a given case] would mean no one would have standing to sue, that’s not a reason to find standing.” But what both of them seemed to forget is that in the standing case most germane to the Arizona legislature’s dispute, Raines v. Byrd—where the Court denied standing to members of Congress in a case challenging the Line Item Veto Act—the majority did suggest that whether another party might be a better candidate for standing was a factor that might cut against standing for the members of Congress. As Chief Justice Rehnquist’s opinion put it: “We also note that our conclusion . . . [that Congresspersons lack standing does not] foreclose the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if . . . [this] circumstance were different we need not now decide.” The clear implication of that last sentence is that the existence of a “better” candidate for standing may very well affect whether the Court is willing to stretch standing doctrine for the sake of the plaintiff actually before the Court.
A Surprisingly (and Problematically) Narrow View of Past Cases and U.S. History
This isn’t the only passage from previous cases that the Justices seemed to have forgotten they said. Justices Kennedy and Scalia repeatedly pressed Mr. Waxman for any instances elsewhere in the Constitution in which the Court had indicated that the word “legislature” was not necessarily a limited reference to the elected representative legislature, but could include the people themselves—the lawmaking authority. While Mr. Waxman had no clear answer, one thing he could have said is that Justice Scalia himself has intimated that “legislature” might in some constitutional contexts be read to include the people. In Salazar v. Colorado, in 2003, a case involving whether Colorado could involve state courts in discharging the power that Article II of the Constitution gives to “the legislature” of each state to prescribe the manner in which presidential electors shall be selected, Justice Scalia (along with Justice Thomas) joined an opinion, dissenting from a denial of certiorari, which said: “Conspicuously absent from the Colorado lawmaking regime, under the Supreme Court of Colorado’s construction of the Colorado Constitution to include state-court orders as part of the lawmaking, is participation in the process by a body representing the people, or the people themselves in a referendum” (emphasis added).
The Justices seemed somewhat forgetful not just of past statements in cases, but also of American history, in particular, the path by which U.S. senators came to be directly elected by the people. The text of the original Constitution (prior to the Seventeenth Amendment in 1913) provided that senators should be picked by the “legislature” of each state. Justice Kennedy, trying to draw a sharp distinction between the “legislature” and the people of the state based on this textual feature of the 1787 document, observed at argument that “until 1913, for close to a hundred years, many States wanted to have direct election of the senators . . . and not one State, not one State, displaced the legislature. It took the Seventeenth Amendment to do that. . . It seems to me that [for this reason] history works against the IRC.”
With all due respect, Justice Kennedy’s historical account here is extremely and problematically simplistic, in that many states did effectively, to use his term, “displace the legislature” in picking U.S. senators. Beginning in the mid-1800s, state-level political parties and organizations sought ways to involve the people more directly in selecting senators, and were devising increasingly effective ways to limit state legislators’ discretion in their choice of federal senators. What evolved into the most sophisticated approach, the so-called “Oregon Plan” (or Scheme), began simply as an opportunity for state legislative candidates to formally pledge to follow the will of the voters, as expressed through an advisory popular election, when it came time to pick the next federal senator. The pledges were considered merely moral at first. But as other states began to follow Oregon’s lead, more creative and more coercive devices were employed. Nebraska, for example, pioneered a “scarlet letter” approach, in which elected legislators who broke the pledge they took as state legislative candidates were burdened with a ballot notation to that effect in the event they sought state legislative reelection. Other states followed suit, crafting variations on the Oregon and Nebraska devices to suit their local needs. Oregon voters ultimately adopted a state constitutional amendment that, as a matter of state law, legally bound state legislators to select the U.S. Senate candidates who were most popular among state voters. By 1912, when the U.S. Senate approved the Seventeenth Amendment, nearly sixty percent of the senators were already selected by some means of direct election (and thus had nothing to fear from it). For this reason, it seems likely that even without ratification of the Seventeenth Amendment, direct election would in fact be with us today in most, if not all, states. In reality then, the Seventeenth Amendment was a formalizing final step in an evolutionary process.
Of course, the Oregon state constitutional provision binding state legislators, the Nebraska scarlet letter devices, and the somewhat similar measures from other states were never litigated in the U.S. Supreme Court or in lower courts. Yet that fact may itself be telling. Does Justice Kennedy think that these devices were in fact unconstitutional because they improperly deprived the elected legislatures of power Article I gave to them? If so, would Justice Kennedy be prepared to call into question the legitimacy of the senators elected from all the states that employed such devices for over a decade? And the actions taken by these Senates? And if not, doesn’t this historical episode support the Arizona electorate and its desire to experiment via the IRC?
In deciding what the word “legislature” in the Constitution means, in Article I and elsewhere—and whether that term can be read to include the people themselves—the Court should, at a minimum, be more careful and sophisticated in taking account of what the Court or various of its Justices have said, and what the full historical record of American democracy reveals.