Judicial Fiat?

Madison's words are oft quoted by those opposing judicial activism,
 but he was actually referring to the courts expanding congressional authority
 beyond that specified in the Constitution.

A month ago I wrote about the Fair Districts movement in Pennsylvania and its lawsuit, led by the League of Women voters, seeking to have the absurdly gerrymandered boundaries of the Commonwealth's districts for the US House of Representatives declared unconstitutional.

That lawsuit succeeded: the Pennsylvania Supreme Court issued an order that the boundaries for the districts be re-drawn.

This has attracted national attention, as Pennsylvania is not the only state in which congressional districts have been a hot topic of political discussion.  North Carolina is just one other current example.

Last week (Monday, 2-26-18, to be precise), this subject was mentioned in the "Monday Political News Roundup" on the NPR broadcast of the KQED (San Francisco) Forum, a program hosted by Michael Krasny.  Krasny was talking with KQED's Senior Political Editor Scott Shafer, when Shafer referred to the decision as a "judicial fiat."

This was somewhat jarring to hear.  As you likely know, NPR is thought of as being part of the "liberal media" establishment, and San Francisco, home to KQED, certainly plays into that stereotyping.  Shafer is not known for liberal bias - and of course no political journalist should be - but a gay man from San Francisco is not someone I would expect to use a phrase that suggests a court is over-reaching its authority, given how the LGBTQ movement has relied so much upon the courts in seeking fair treatment.

The word fiat, taken in its most neutral sense, can mean simply an order to "make it so" (in the words of British naval officers, made famous by Captain Picard on Star Trek).  But the word is usually understood to suggest an arbitrary edict, in an authoritarian sense.

The purpose of this essay is not to take Shafer to task for his choice of words but to examine the question of whether the Pennsylvania Supreme Court was, in fact, over-reaching.

The Court found the gerrymandered districts unconstitutional.  So we should ask whether there is anything in the Pennsylvania Constitution or the US Constitution that provides a clear basis for that ruling.  The federal Constitution says simply that the drawing of district boundaries is the job of the state legislatures.  The Pennsylvania constitution, a much longer document (typical of state constitutions), contains specific language concerning the drawing of boundaries for state legislative districts but not congressional districts.

So what did the Commonwealth's high court do to find a basis for its ruling?

First, it declared that the language related to the drawing of state legislative districts - which specifies that districts should be compact and contiguous and should break up recognized entities such as counties and municipalities as little as possible (only where necessary to make district populations come out even) - to be entirely appropriate for extrapolation to congressional districts and to provide a "floor" - or minimum standard - by which these boundaries can be judged.

Second, it reviewed the political history of Pennsylvania, from colonial times through the drafting of the Commonwealth's first constitution and several revisions over many decades.  In an opinion exceeding 130 pages, the Court found that Pennsylvania has a history of trying to assure that its citizens have representation based on elections that are free and equal.  The consistent principle is that Pennsylvanians should not have less of a voice in their government because of where they live, or their nationality or ethnic background, or their political ideology.  Thus congressional district boundaries deliberately drawn to have exactly that effect are unconstitutional in the Court's view.

The state Supreme Court then reviewed the evidence presented by the parties to the lawsuit in support of or refuting the claim that existing boundaries were, in fact, deliberately drawn for the purpose of reducing the voice in government of Pennsylvania Democrats.  This evidence was somewhat limited by the refusal of Republican leaders in the state legislature to provide information about the methods they used in drawing the lines.

However, the strategy and tactics used by the Republicans have been no secret.  "REDMAP" is both what the GOP wants the US to look like (the Republican party's symbolic color red dominating the US map) and the acronymous name of its project for achieving that: the Redistricting Majority Project.  Just Google REDMAP, and settle in for hours of reading about how successful this has been in many US states, Pennsylvania prominent among them.  As I explained in last month's essay, Pennsylvanians distribute their votes for Members of Congress roughly equally between the two major parties, yet the state's congressional delegation of 18 in the US House of Representatives is not 9-9, but 13 Republicans and 5 Democrats (before the resignation of Tim Murphy last fall).  The situation is similar for the state legislature, which has strong Republican majorities in both houses.

So what are we to make of the Court's ruling?  It might seem even more like judicial fiat when you consider that the Supreme Court issued the new boundaries itself.  But its original order instructed the legislature to develop a new plan for congressional districts, send it to the governor for his approval, and then pass it along to the Court for its review.  The other branches of state government did not follow those instructions, knowing full well that Court-issued boundaries would be the result.  Legislative leaders of the two parties separately prepared new maps (on a partisan basis), and the Republicans sent theirs to the governor.  He did not approve, and prepared his own.  All of these were forwarded to the Court.  As no plan was submitted to the Court having been approved by the legislature and the governor, the Court, aided by its retained Special Master, drew up its own plan.

Just what is at issue here?  First, whether the state constitution, accompanied by state constitutional and legislative history, really affords a basis for the Court's ruling.  Second - given the US Constitution's provision assigning the task of drawing congressional district boundaries to state legislatures - whether the Court was sufficiently deferential to legislative authority.

Any time someone does not like a court ruling that is at odds with what legislators have done, the court can expect to be accused of "legislating from the bench" or of "judicial activism."

In the case of this Pennsylvania Supreme Court ruling, legislators have proposed impeaching the justices who voted in the majority, and the ruling has been appealed to a panel of federal court judges as well as to the US Supreme Court in a separate action.

Few things are of such keen interest to students of political science as a battle between branches of government over separation of powers.

If you are a "strict constructionist," you are likely to object to the Court's ruling, as it does not rely on the plain language of the state constitution (which does not specify criteria for congressional districts) and seems to flout the US Constitution (which assigns authority to state legislatures).  If you believe in the importance of examining constitutional and legislative history, which the Court does at great length in its opinion, you will reach the opposite conclusion.  Yesterday's Pittsburgh Post-Gazette offered a glimpse of this difference of opinion within the Thornburgh family.

Here is an update of the situation, published yesterday in The Morning Call, an eastern Pennsylvania newspaper.  At this point the pundits' consensus view seems to be that the federal court challenges will fail, and the new districts will be in effect for the primary to be held May 15th.  Right now congressional candidates across the Commonwealth are circulating petitions, gathering signatures to get on the ballot for that primary.  As one of those candidates, I would like the federal courts to stay out of this, as we have had so many screwball twists and turns in this election cycle already, we really don't need another one.  But stay tuned!