Supreme Court can’t tell what “legislature” means

Supreme Court can’t tell what “legislature” means July 7, 2015

Lost in the tumultuous week of Supreme Court rulings over Obamacare and gay marriage was another odd ruling.  To combat gerrymandering, the people of Arizona passed a referendum that would take away the state legislature’s power to draw electoral boundaries and give it instead to a non-partisan commission.  That sounds like a good outcome, since gerrymandering–drawing districts to protect the incumbents–is a plague on democracy.  The problem is, the Constitution explicitly, in so many words, gives that power to the “legislature.”

But not wanting the Constitution to get in the way of their favored policies, the court ruled in favor of the commission.  George Will tells the tale and recounts Chief Justice Robert’s vigorous–if surprising, given his Obamacare ruling–dissent on the necessity of attending to the language of the Constitution.

From George Will, The wrinkle in the Affordable Care Act decision – The Washington Post:

To end gerrymanders, Arizona voters, by referendum, amended the state’s constitution to strip the legislature of its control of redistricting. They created an Independent Redistricting Commission (IRC) on which no member of the legislature may serve.

However, the U.S. Constitution’s elections clause says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” When Arizona’s legislature sued, the IRC’s implausible response was: The Constitution’s Framers did not use the word “legislature” as it was then and still is used, to denote the representative bodies that make states’ laws. Rather, the IRC said the Framers used “legislature” eccentrically, to mean any process, such as a referendum, that creates any entity, such as the IRC, that produces binding edicts.

Implausibility is not an insurmountable barrier to persuading a Supreme Court majority, and last week five justices accepted the IRC’s argument. Ruth Bader Ginsburg, joined by Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, said: There is “no suggestion” that when the Framers stipulated that the manner of a state’s elections should be determined by “the legislature thereof” the Framers necessarily meant “the state’s representative body.”

This detonated Roberts, who began his dissent by saying: The reformers who waged “an arduous, decades-long campaign” to achieve ratification in 1913 of the 17th Amendment establishing popular election of U.S. senators could have saved themselves the trouble. They could have adopted what Roberts calls the “magic trick” the majority performed regarding Arizona. What chumps the reformers were for not simply asserting this: Sure, the Framers stipulated that two senators from each state were to be chosen “by the legislature thereof,” but the Framers really meant “by the people.”

Roberts said the majority wasted much ink defending a proposition that “nobody doubts” — that the people of Arizona can, under their state constitution, exercise lawmaking powers. They cannot, however, establish governmental processes that violate the U.S. Constitution. With many citations from the Federalist Papers and Supreme Court precedents, Roberts emphasized that a state’s “legislature” was not a term of uncertain meaning when the Framers put it into the Constitution.

[Keep reading. . .]

Mr. Will goes on to ask, where was this Justice Roberts when he ruled that the plain language of the Affordable Care Act–that subsidies would go only to those in state-run exchanges–could be ignored?  Mr. Will concludes that he was standing up for legislative power in both rulings, something conservatives should applaud, but my concern is that interpreting the law over against the language of the law is a kind of lawlessness.

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