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Bruce Bialosky

A Most Excellent Supreme Court Decision

Two U.S. Supreme Court decisions came down one after the other. The first was about reapportionment. The court ruled that they have no say whether elected officials can gerrymander political districts. While waiting for the second decision about a question on the census, the news made that seem like a more important decision. It is not. Analysts missed the reason why.
While waiting for the Census question decision, Alan Dershowitz was interviewed and he stated that the two consolidated cases regarding how districts are drawn, Rucho v. Common Cause and Lamone v. Benisek, were “100 times more important than the census question case.” He was correct — just for the wrong reason.

Most analysts focused on the idea that Republicans won a major victory in this 5-4 decision where the right-of-center Justices were in the majority. That is because currently the vast majority of legislatures are controlled by Republicans and control reapportionment in their states. That is a shallow view of the ruling and not why the Left was so agitated. In effect, the ruling stated that legislatures can draw the lines of political districts within their states for Congressional and state legislature elections for the most part as they wish.

Let’s backtrack and remind everyone that political apportionment of these district have been around since the beginning of our country and defined by our Constitution. You may remember the controversial process is named after Eldridge Gerry, a signer of the Declaration of Independence. His formation of the concept behind partisan redistricting occurred in 1812 when he was Governor of Massachusetts. He will always be remembered in America for his namesake “gerrymandering.”

Challenging the decision of whomever did the reapportionment of districts
is not new at all. Whichever political party has the perception they been “done wrong” would scream and yell. It caused some states to form “nonpartisan commissions” to do the redistricting. After the 2010 census, California’s commission drew up the new districts. I did an extensive study of the process, participants and the outcome and wrote a three-part column on it. The commission was highly partisan just in a more devious way. I concluded the Republicans were better off with the old process where the Dems would draw up the districts and then Republicans would agree to it. They knew those Dems were interested in partisanship and did not try to hide it. At least the Republicans knew who was cheating them. It was honest cheating.

There was even a recent Supreme Court ruling on this matter in 2004. In Vieth v. Jubelirer, the court came to the same conclusion which is the Court has no say on redistricting. If it is unfair to one political party, please don’t look to us for a remedy. Yet, political parties — in this situation one case for each political party — continued to ask for relief from the Supremes from their political opponents.

What makes this different is we have the first legitimate (right of center) majority Supreme Court since forever. We were supposed to have that when President Eisenhower appointed Earl Warren as Chief Justice. We all know how that turned out.

What this new Supreme Court majority said was stop looking to the courts to remedy every political question; if you can’t get proper (i.e., your favored ruling) relief from the ballot box or the legislature in your state then tough – that is how our system works. This is what some say is “HUGE.”

Every major social issue, particularly starting with abortion, has been an issue that was the purview of the states. With Roe v. Wade, the Court started to fabricate rights. Whether you believe in abortion or not, you cannot tell anyone with any knowledge of our Constitution, the law and our Supreme Court that Roe v. Wade came from anywhere other than out of the mind of Justice Harry Blackmun. The trimesters did not exist until Blackmun. And the new “right to privacy” magically appeared in the 14th Amendment.

At the time, states were pursuing providing abortion rights to women. Some would; others would not. Just like matters that followed such as gay marriage; it was working its way through state legislatures. Gay marriage at least had some rationale in that one can argue that we cannot have some states recognizing certain types of marriage while others do not. On the other hand, we do have reciprocity laws.

Whether you support gay marriage or abortion or whatever your cause is, the courts should not be adjudicating everything in our lives. The federal government has limited powers. We should not campaign to make the federal government omnipotent to further our personal pet causes. The 10th amendment of our Constitution states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It is nice to have our Supreme Court remember that very important statement. In the long run we will be a lot freer if everything is not centralized in Washington DC. Hopefully, the 10th Amendment will be invoked more frequently in the future.