Wednesday, April 10, 2019

Please welcome the newest contributor to High School SCOTUS: Jason Frey!

Jason is a high school junior and Supreme Court enthusiast from Natick, Massachusetts. Below is his first post, which explores a new method of measuring partisan gerrymandering as it relates to Rucho v. Common Cause (2019). He was inspired to write this because his final AP Government project last year entailed studying gerrymandering in Massachusetts. 

Rucho v. Common Cause and the Partisan Bias Measurement

On March 26, the Supreme Court heard oral arguments in Rucho v. Common Cause, a partisan gerrymandering case that deals with North Carolina’s 2016 congressional map. North Carolina has endured several map-related fiascos, a nightmare that began with its 2011 map established by the most recent decennial census. Soon after the map was finalized, it was challenged under the Voting Rights Act of 1965, which prohibits racial gerrymandering. Fast forward five years, and Senator Robert Rucho summoned an expert to create a new map—one that was almost instantly disputed by Common Cause, the North Carolina Democratic Party, and the League of Women Voters. These lawsuits were consolidated into a single case and filed in the United States District Court for the Middle District of North Carolina. The three-judge panel ruled for the challengers, affirming their standing to file the suit and ruling that the map was an unconstitutional partisan gerrymander. Rucho then appealed to the Supreme Court.

Heard recently alongside Lamone v. Benisek, another partisan gerrymandering case, Rucho v. Common Cause is now being considered by the Supreme Court. The appellees’ arguments are similar to those of other notable anti-gerrymandering advocates, for they all agree that the 14th Amendment’s Equal Protection Clause prohibits maps from favoring one political party—and that it’s inherently unfair to skew an election. However, the real significance of Rucho is that the appellees have introduced a new calculation for measuring the extent of partisan gerrymandering called the Partisan Bias Measurement (PBM). For decades the justices have searched for a bright-line rule to determine when gerrymandering is unacceptable, and the PBM, which measures deviations from the norm, is a viable option.

The term “gerrymandering” was coined in 1812 after Massachusetts Governor Elbridge Gerry approved a salamander-shaped congressional district, thereby forcing a win for the Democratic-Republicans. Gerrymandering is meant to secure a party win through the two methods of “cracking” and “packing”: 1) “cracking” splits voters of a certain demographic into many different districts so they have trouble winning, while 2) “packing” sacrifices a few districts by stuffing them with one demographic—e.g. African Americans—allowing other districts to gain unnatural power. Racial gerrymandering was deemed unconstitutional in the late 1990s, as the Supreme Court based its decision on the amended Voting Rights Act and Equal Protection Clause of the 13th Amendment. But now, voters and courts are grappling with partisan gerrymandering.

There are two main ways to measure partisan gerrymandering: the efficiency gap calculation (EG) and the PBM. The efficiency gap works by tallying the number of “wasted votes” in an election, which are the excess number of votes the winning party received and the number of votes the losing party had. The difference between these two sets of wasted votes per district is then taken and divided by the total number of votes in the election. The resulting percentage shows how much one party is favored, and anything above 8–10% is deemed an unfair partisan gerrymander. While the efficiency gap’s main flaw is that a deeply partisan state can yield a high EG without necessarily being gerrymandered, that issue can be solved by comparing the efficiency gap to the breakdowns of party affiliation in the state. Today, the efficiency gap is the prevailing method for quantifying gerrymandering.

While the efficiency gap measures wasted votes in relation to the total number of votes cast, the partisan bias measurement creates a model for potential election outcomes. The PBM plots all the potential outcomes of a set of election results on a graph with a 50-50 origin—for example, it plots what happens if 60% of votes are for a Republican and 40% are for a Democrat. This information goes on the x-axis. On the y-axis, the PBM plots all potential outcomes when each party receives 50% of the vote. The numerical result is the difference between the actual percentage of seats controlled and the 50-50 ideal. I have a few concerns about the PBM, as its calculations are somewhat convoluted. It also relies on the debatable assumption that each party should get exactly 50% of seat control. Perhaps the Supreme Court will decide whether this assumption is correct.

It’s a bit troubling that in the North Carolina maps, once the curve moves away from the (50,50) origin, one party seems to control less and less a percentage of seats in relation to the percentage of votes they received. That seems like an issue, because it looks like the creators of the model are saying, “we want you to pay attention to the fact that the curve should pass as close to 50, 50 as possible, but outside of that, we don’t really care about a significant difference between votes and seats.” In other words, nowhere on any of the graphs is the slope actually one. This is a problem because the creators’ fundamental argument about the PBM is that it shows when the percentage of votes matches the percentage of seats. Maybe this is because the calculation accounts for clusters of large relative population in cities, or maybe it just needs a different transformation on one of the axes. Either way, this discrepancy must be addressed.

My last issue with this model is that there is no real threshold for establishing when partisan bias exceeds a certain “unacceptable” amount. Since the PBM is just a difference that is subjectively compared to models from previous elections, there is no set condition. In contrast, the efficiency gap takes gerrymandering more fully into account because it uses the strategies of cracking and packing to look at the number of wasted votes, and anything within a margin of ten points is deemed acceptable. The creators must find that threshold for PBM to be widely used.

Although I have concerns about the PBM, it is imperative for nonpartisan committees and state congresses to measure partisan gerrymandering. The creators of this measurement may have to tweak it according to some of my points or criticism that it receives from the Supreme Court. Nevertheless, I see many positives about the PBM, like the fact that we can finally create a graphic model of gerrymandering; we can evaluate each cycle’s level of gerrymandering in relation to previous election cycles; and we can use big data and computing power to model theoretical outcomes. It is likely that the Court will discard the partisan bias measurement, as they seem averse to statistical models of gerrymandering, but it is an interesting discussion nonetheless.


Sunday, April 7, 2019

Argument Analysis: American Legion v. American Humanist Association

by Jackson Foster

The Supreme Court heard arguments last month in American Legion v. American Humanist Association, a case involving a 40-foot Peace Cross situated in a Maryland public park. Before (and since) the argument, American Legion has received special attention from the constitutional scholar and layman alike. It has been enveloped in media scrutiny (see friend of the blog Nina Totenberg’s “Cross Clash Could Change Rules For Separation Of Church And State”), it is one of the first Establishment Clause cases in the Kavanaugh era, and it may spell the end of the Lemon test.

While constitutional considerations carry great weight (exhibit A: this blog exists), they miss the heart of this case. American Legion does not so much implicate the Establishment Clause or the Lemon test as it implicates American civil religion. The questions argued in the case, therefore, can be nicely distilled to one: Is the cross civil or sectarian?

Let’s first take a crash course on civil religion in America, as pioneered by sociologist Robert Bellah. From Bellah’s system we get five main components: god talk; founders and documents; the book of Exodus; death, sacrifice, and rebirth; and the ritual calendar. These parts, in turn, form an “elaborate,” “well-institutionalized,” and “[non]-sectarian public religion.” But these parts — and by extension civil religion itself — are fluid, frequently changing in the direction of our nation’s socio-cultural evolutions.

The Peace Cross was created in 1918, a time when the Social Gospel movement had reached its apex. As a result, the Bellian ideal of an “implicit but quite clear division … between … civil religion and Christianity” was diminished. And although this diminution blurred the lines between the Christian god— its iconography, sacred texts, etc.— and its civil counterpart, the cross at issue here was created for a commemorative purpose, connecting to themes of “death [and] sacrifice” more than sectarian devotion.

Or at least that’s what Neal Katyal, who argued in favor of keeping the cross, seems to think. “Families and the Legion built it 93 years ago,” he said, “to commemorate 49 brave souls who gave their lives in World War I” (italics added). He re-phrased this more explicitly: “A group of people decided long ago that this cross was the most appropriate national symbol to honor the sacrifice of those who passed in WWI.” Thus, the cross was (and still is), as Bellah would say, “[an] express[ion] [of] what those who set the precedents felt was appropriate under the circumstances.”

But we know that pluralism haunts these traditionally non-establishment yet undeniably sectarian statues and figures like some “ghoul in a late-night horror movie.” (I know the prior quote is about the Lemon test, but, c’mon!— it’s too fun not to use Justice Scalia’s sardonic analogies.) In last month’s argument, Justice Kagan struck at the core of the ever-growing influence of pluralism on our civil conceptions. “What would happen if all the facts that you gave were the same, except for the 93 years?” she asked. What would happen, as she knows, is the city council would never approve such a gaudy cross, or any cross at all. If they did so,  it would undoubtedly be an Establishment issue. After all, “religious ethnocentrism declined significantly during the century,” meaning our religious displays must now include space for our nation’s 3.5 million Muslims, 20 million atheists, … etc. But Deputy Solicitor General Wall disagrees, arguing instead that the “nation’s long tradition of accommodating religious speech or symbols in civic life” overcomes the Peace Cross’s Establishment problem.

The cross’s commemorative purpose (or lack thereof) only further complicates the issue. To be secular, according to the American Humanist Association’s lawyer, “the commemorative purpose” of the cross “would need to predominate over the sectarian.” Wall believes that the cross exists well within the classificatory system above: “It has taken on a secular meaning associated with sacrifice or… death or commemoration.” Justice Kagan, however, sees the cross “as a way [for Christians] to memorialize the dead…, because it connects to [Christians’] central theological belief… that Jesus Christ… died on the cross for humanity’s sins and that he rose from the dead.”

The cross is a Schrödinger’s cat of sorts, caught in a quantum state— being beyond a “sectarian meaning” (the words of C.J. Roberts) to some, mostly of a time gone by; and outright devotional to others, mostly of the here and now.

Alright, we get it. Establishment issues are difficult, a kaleidoscope of civic and sectarian shapes. So what? What’s next?

Let’s handle these questions for American Legion first, by reviewing some possible outcomes of the case: 

1) A divided court rules that this cross is secular because of its age and commemorative purpose. 

This outcome would comfort people who fear that the U.S. government is removing religion from the public sphere. But a decision like this means that the cross is nothing more than a secular figure, like a Christmas tree. And if  “secularizing the cross” is as blasphemous as Justice Sotomayor contends it to be, then this victory is “a Pyrrhic one indeed” (see Justice Blackmun in Lynch v. Donnelly).

Additionally, this result would slow the court’s Establishment Clause caseload for the foreseeable future. American Legion is an archetypal establishment case: Different people from different times think a symbol has different meanings. If the court doesn’t rule favorably for the respondents here, you’d be hard pressed to find a case in which it would.

Finally,  a decision for the American Legion might predicate a new constitutional standard for passive displays— erasing, at least in this one sphere, a great deal of the precedential weight of the Lemon test.

2) The court rules in favor of the American Humanist Association, exposing themselves and their lower-court colleagues to an inundation of Establishment cases. This result is unlikely, with the new conservative tilt of the court contributing largely to this unlikeliness. However, a ruling for the Humanist Association would re-solidify the Lemon test as the standard par excellence for passive displays of religious iconography.

Of course, there could be punts, pluralities, and many more unexpected twists to this case— but these two outcomes seem to be the most plausible. The cross will either be seen as civil enough to stand or not; and from there, the court will need to pick up the jurisprudential pieces.

To close, though, I’d like to take a stance independent from Bellah and this case.

I ask the reader to view the Establishment Clause not as a Jeffersonian “wall of separation,” but as an issue of accommodation for the minority religions which comprise this nation. Those who face institutional prejudice are often not able to challenge, as the Humanist Association does, the monolithic presence of Christianity.

This cross may pass the scrutiny of the “wall of separation,” but it most certainly does not furnish a safer and more inclusive space for minority sects. That we have a debate surrounding whether or not the cross should stand when we know this to be true is a perversion of the establishment ideal.

Friday, April 5, 2019

Original Meaning and the Eighth Amendment: A Response to Anna Salvatore

by Curtis Herbert

The Supreme Court recently decided Bucklew v. Precythe, a case concerning a prisoner who claimed that a lethal injection would interact with his medical condition to cause unbearable pain. For those who are unfamiliar with the case, I direct you towards Anna’s recent post.

The majority opinion’s main problem is that it rejects one atextual approach in favor of another. The dissent suffers from the same disorder.

Justice Gorsuch’s majority opinion extended a couple of older precedents, Glossip v. Gross and Baze v. Rees, which require prisoners who claim that their execution would be cruel and unusual on its face to propose a workable alternative method of execution. Gorsuch extends this holding to as-applied challenges. The issue with this holding is that it doesn’t comport with his originalist opinion. Gorsuch’s defense is that “distinguishing between constitutionally permissible and impermissible degrees of pain… is a necessarily comparative exercise.” He is correct that, in order for a state’s method to “super-add” pain, the state must choose a painful or undignified method over a less painful one. But this fact is taken too far in the majority’s opinion. It delves into a rigorous fact-finding expedition over whether Bucklew’s proposed alternative, lethal gas, would be less or more painful than the default lethal injection, which seems inconsistent with the main point of the majority opinion.

The main point of the majority opinion is this: If an execution method is intended to increase suffering, it is unconstitutional. But if added suffering is incidental, as a result of special circumstances unforeseen by those who designed the execution protocol, then it can stand. In some circumstances, this may require a close look at whether the state chose a method it knew would be gruesome, or if it made a decision between two excruciating options. But an approach that carefully inspects all proposed alternatives is unnecessary. Take hanging for example, an historical execution method that the majority discusses at some length. Today, hanging would be cruel and unusual. It would be cruel because it adds pain and suffering where none need exist, and it would be unusual because it hasn’t been used in over a century. More humane alternatives are available. However, the majority seems to suggest that if the execution method is not designed to add pain, then all applications of that method are presumptively constitutional. Its reasoning doesn’t make comport with Glossip, the case it is purportedly extending, which created the workable alternative standard. And so I think the majority’s opinion is internally inconsistent.

On the other hand, the dissent would jettison Baze and Glossip altogether in favor of an approach that makes no effort to faithfully interpret the text. Breyer, unsurprisingly, wants the judiciary to become the ultimate arbiter of what is too painful. He suggests an alternative way to interpret the Eighth Amendment: punishments can be inherently cruel and unusual, and unconstitutional even absent any other means of execution. This is certainly an appealing approach; it makes intuitive sense to declare that cruel punishments are impermissible regardless of intent or other available options. But rulings are not correct because they are appealing; indeed, they are often appealing because they are correct. Justice Breyer’s theory, although it provides a wonderful solution, makes no appeal to the text of the Constitution. The unappealing majority opinion makes a stronger claim, even though I retain my doubts.

The correct approach, as I see it, is to move away from both the majority and the dissent’s approaches and instead look to original meaning. We should interpret punishments as “unusual” if they have never been used before, or have fallen out of use. We should interpret them as ‘“cruel” if they impose excruciating pain or suffering or are undignified. This seems like the best historical and practical approach– it spares prisoners from having to suggest an alternate means of execution that may in fact be unconstitutionally cruel and unusual, and it provides a basis for deciding challenges that is rooted in the Constitution.

Response to Brenna Donohue’s post:

In February, a Muslim inmate named Domineque Ray requested a stay of execution. He wanted an imam to witness his execution, but his prison only allowed Christian chaplains inside the execution chamber. The Supreme Court denied his request. Just last week, a similar case cropped up when Patrick Henry Murphy requested a delay of his execution. He wanted his Buddhist advisor inside the execution chamber and was forbidden from doing so, and this time, the Supreme Court granted his request. Many people are speculating about why the Court seemingly switched positions in so short a time, with Brenna Donohue of High School SCOTUS speculating about the timing disparities (Ray raised his claim late, according to the Court; Murphy raised his in a timely fashion) and others wondering if Justice Kagan’s fiery dissent in Ray changed her colleagues’ minds. (Unlikely in my view; it’s very hard to believe that her dissent from denial of a stay wasn’t circulated before the opinions were released.)

I see a more likely reason for the different reaction from the justices. To my knowledge, Henry’s claim was filed under the Free Exercise Clause, whereas Mr. Ray’s petition was filed under the Establishment Clause. Many of the originalist-leaning justices are more sympathetic to Free Exercise Clause challenges than Establishment Clause ones. For example, Justices Thomas, Gorsuch, Kavanaugh, and Alito recently said in a denial of cert that they would be willing to reconsider Employment Division v. Smith, a Free Exercise Clause case that upheld neutral and generally applicable laws that incidentally burden religion. Justice Thomas has long believed that the Establishment Clause does not prohibit government entanglement with religion (as the Lemon test might have it), but only prohibits government interference with state-established religion. Justice Gorsuch may be of the same mind; he and Justice Thomas have often agreed with each other. At any rate, we will see how many justices hold this unorthodox originalist view when the Court decides the Peace Cross Case later this year.

Tuesday, April 2, 2019

Bucklew v. Precythe Opinion Summary

By Anna Salvatore

The Supreme Court split 5–4 along partisan lines yesterday morning, with the conservative majority rejecting inmate Russell Bucklew’s claim that executing him by lethal injection would violate the Eighth Amendment. Bucklew has a rare medical condition that causes tumors to grow on his head, face, and neck, and he claimed that Missouri’s injection would cause him to choke on his blood. For inmates like Bucklew to successfully challenge an execution protocol under the Eighth Amendment, they must suggest a “feasibly, readily implemented” plan B that would “significantly reduce a substantial risk of severe pain” (Baze v. Rees). So instead of lethal injection, Bucklew suggested that Missouri execute him by lethal gas. The 8th Circuit rejected his proposal, and yesterday the Supreme Court followed suit.

There are two main types of 8th Amendment challenges, facial and applied, and yesterday the differences were important. A facial challenge is when you argue that a law is unconstitutional in all of its applications; an applied one, generally speaking, is when you argue that the law is only unconstitutional when applied to you. Everyone agrees that Bucklew brought an applied challenge, since he claimed that Missouri’s lethal injection protocol would be “cruel and unusual” when applied to his tumor-ridden body. But before yesterday, not everyone agreed that inmates who bring applied challenges must propose an alternative procedure. It was only certain that inmates who bring facial challenges must do this.

Justice Gorsuch relied heavily on originalist arguments in his majority opinion. “As originally understood,” he wrote, “the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain, or disgrace.” In Gorsuch’s view, to show that an execution method super-adds pain, the method must be compared to a feasible, readily implemented alternative that would significantly reduce a substantial risk of pain. He thinks that it’s strange to have two different standards — comparing and not comparing — for facial and applied challenges, because “distinguishing between constitutionally permissible and impermissible degrees of pain… is a necessarily comparative exercise.” Besides, the difference between facial and applied challenges isn’t always black-and-white.

Justice Kavanaugh wrote separately to emphasize that when looking for alternative execution methods, inmates can draw from the protocols of other states. They aren’t just limited to the methods that are legal in their state.

In the next part of his opinion, Gorsuch argued that Bucklew’s lethal gas proposal was an invalid alternative to the lethal injection. For one thing, Gorsuch wrote, the proposal was simplistic – it didn’t provide any details about “how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases),” and so on. Plus, Missouri had a legitimate reason for rejecting Bucklew’s proposal: it didn’t want to be the first state to execute someone with lethal gas.

In a white-hot dissent, Justice Breyer accused the majority of creating a stringent standard for alternative proposals that has no place in the Constitution. “Glossip did not refer to any of these requirements; today’s majority invents them,” wrote Breyer. “And to insist upon them is to create what, in a case like this one, would amount to an insurmountable hurdle for prisoners like Bucklew… I cannot reconcile the majority’s decision with a constitutional Amendment that forbids all ‘cruel and unusual punishments.’” He also disagreed that determining the constitutionality of an execution method has to be a comparative exercise. Perhaps this holds true in other cases, but there was no need for Bucklew to supply an alternative. He could have compared Missouri’s normal, relatively painless lethal injections to the excessive pain he would have suffered due to his medical condition. 

The justices are clearly upset about Dunn v. Ray, a recent case in which a death row inmate challenged his prison’s policy of only allowing Christian chaplains in the execution chamber. The conservative majority refused to delay his execution, claiming that he had filed too late, and the liberals dissented ferociously. Yesterday the case was re-hashed not only at the conclusion of Justice Gorsuch’s majority opinion, but also in a footnotes battle between the majority and the dissents. “Last-minute stays should be the extreme exception, not the norm,” wrote Gorsuch, arguing that inmate Domineque Ray should have known about his prison’s policy far before he filed his complaint. Alas, Breyer pointed out that Ray was only told about the policy five days before his execution, and that the constitutional issue at stake was serious enough to merit consideration.

I should have mentioned this before, but Gorsuch spends the last subsection of his opinion lamenting last-minute stays (ex: “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay”). Justice Sotomayor blasted this language in her dissent, calling it “ominous” and “wholly irrelevant to [the] resolution of any issue before us.” She was especially concerned by the majority’s statement that “last-minute stays should be the extreme exception,” because it might imply that the justices view last-minute applications from death row inmates unfavorably. Although courts can reject an application if it creates a needless delay, the death penalty is different, and as a result “the equities in a death penalty case will almost always favor the prisoner so long as he or she can show a reasonable probability of success on the merits.”

This seems right to me. So too does Breyer’s third point: that although the majority notes that terrible tortures like burning at the stake are forbidden, lethally injecting Bucklew would feel the same. It would be “excruciating and grotesque.” I welcome your thoughts on this. 

Sunday, March 31, 2019

by Brenna Donohue

In a decision quietly issued on Thursday night, the Supreme Court permitted a stay of execution for Patrick Henry Murphy, an individual on Texas’s death row. Murphy asked that a Buddhist spiritual advisor be present at his execution, a request which the Supreme Court granted. Justice Kavanaugh was the only justice to explain his vote. He wrote that he would allow Buddhist inmates the same privilege of advisor as their Christian or Muslim counterparts, while noting that states have the right to bar spiritual advisors from the execution chamber. In those situations, advisors of all denominations can watch executions from the viewing room instead.

Sharp-eyed Court-watchers may note this case’s similarity to that of a Muslim inmate executed in February, Domineque Ray, who petitioned the Supreme Court to allow a Muslim imam to be present at his execution. His prison’s policy only allowed Christian chaplains in the execution room, with advisors such as imams or rabbis permitted to stay in a sealed-off viewing room. The Court denied Ray’s request, he was executed, and his case was then debated in the court of public opinion. The reaction was overwhelmingly negative.

Now that the Supreme Court granted Murphy’s request for a Buddhist advisor, people are wondering why it denied Domineque Ray’s request for an imam. What accounts for the different outcomes in these two very similar cases? 

The Supreme Court seems to have denied Ray’s request because he waited too long to challenge prison policy. “On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay […]”, the majority opined.

But in Murphy’s case, the difference between life and death was an asterisk. At the very end of his concurring opinion on Murphy, Justice Kavanaugh added one tiny * and wrote:

*Under all the circumstances of this case, I conclude that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution.

Ultimately, it seems that the Court’s decisions in each case were well within its bounds. After all, Gomez v. United States Dist. Court for Northern Dist. of Cal (1992) allowed the Supreme Court to “consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” But although the Court was legally justified in making these decisions, it was by no means obligated to, particularly in Ray’s case.

Interview: Rep. Jamie Raskin

Jamie Raskin is the U.S. Representative for Maryland’s 8th congressional district. He is a member of the House Judiciary Committee; the Subcommittee on the Constitution, Civil Rights, and Civil Liberties; and other committees dealing with House oversight and administration. Before joining Congress, Raskin taught constitutional law at American University’s Washington College of Law. He wrote “We the Students,” a casebook about the Supreme Court for high school students, and co-authored “Youth Justice in America.” He also co-founded the Marshall-Brennan Constitutional Literacy Project, a program that we talk about in our interview. 

Image result for jamie raskin

Rep. Raskin

My questions are in bold. Representative Raskin’s answers are in plain text.

What kind of a teenager were you, and how did you become interested in constitutional law?

I was a teenager who thought I was going to be a professional quarterback in the National Football League. Then I pretty much stopped growing at 5’7″ and three quarters, so that was the end of that dream. But I was always obsessed with history and politics and the Constitution. I even wrote the constitution for the student council at my high school, so I thought I was the James Madison of my high school.

Did you always know that you wanted to attend law school?

When I was six years old in 1968, my father was indicted in a criminal conspiracy case called the Boston Five trial. It was an anti-draft, anti-war conspiracy case with Dr. Spock, William Coffin, and some other people. Those are my first real memories in life, of sitting in that courtroom and watching the trial. It was a scary experience for a little kid, thinking that his father might go off to prison, and it was very confusing. But it launched my lifelong fascination with the law and showed me how law can be an instrument to hurt people and injure people but also an instrument to help and free them. So I suppose I’ve always had this passion about the law as an instrument of justice.

Once you got to law school, which areas of the law were you drawn to?

Always constitutional law. I think of constitutional law as the master law. It’s the constitution that frames everything, including contracts and torts and criminal law and civil procedure. Everything has a constitutional foundation and framework.

In 1999, you co-founded the Marshall-Brennan Constitutional Literacy Project, where law students are sent into high schools to teach the Constitution and the Bill of Rights. Why were you inspired to create this program?

Back in 1996, I represented some kids whose TV show had been censored by the Montgomery County public schools. It was called Shades of Gray, and they had done a show about same-sex marriage. The subject matter was considered so incendiary and controversial that the school district censored the show, even though it was two conservatives and two liberals seated around a table having a perfectly civil dialogue about it. I represented the kids, and we got the censorship reversed. In the meantime, though, I came to realize that the schools which should be teaching kids about their constitutional rights are often trampling the constitutional rights of kids. And the young people didn’t know anything about the Supreme Court cases that affected them. Some of them had heard of Brown v. Board of Education, but they were blissfully unaware that a large part of American constitutional law has been written in the context of the American public high school. That’s when I decided that I would write a book for young people about the Constitution and the Supreme Court through the prism of cases that affect them directly. “We the Students” has all of the cases about locker searches and drug testing of student athletes and censorship of student newspapers and yearbooks and Title IX. You name it, it’s all in there.

After writing the book, I launched a project with my friend Stephen Wermiel and the Marshall and Brennan families where we would send law students into high schools to teach about the Constitution. That was the genesis of the Marshall-Brennan project, and it’s celebrating its twentieth anniversary next weekend. It’s at fifteen or twenty law schools across America today.

In your experience, which high-school-related cases are most surprising to teenagers?

All of the kids love Tinker v. Des Moines School District. That was the high-water mark of Supreme Court respect for the rights of kids. Justice Fortas wrote that neither teachers nor students shed their First Amendment rights at the schoolhouse gate, and then the Court held that Mary Beth Tinker had a free speech right to wear her black armband protesting the Vietnam War. Young people just love the fact that she stood up for her rights, her family stood with her, and she took it all the way to the Supreme Court, where this was this great, ringing decision.

But the Supreme Court has backtracked considerably since 1969, and there are a lot of cases that make students really mad. The kids get very offended by the Supreme Court’s jurisprudence allowing pretty extensive searches of students at school, in their lockers and in their bags. New Jersey v. TLO surprises them. I mean, the Supreme Court also found that corporal punishment is not a violation of the Eighth Amendment’s ban on cruel and unusual punishment. It’s been done away with in most of America, but that’s through state constitutional decisions or state laws. That often surprises kids.

There is a lot in the history of the Supreme Court’s treatment of students which is uplifting and a lot that’s very discouraging for young people.

What’s your advice for teenagers who are troubled by Bethel v. Fraser, Hazelwood v. Kuhlmeier, New Jersey v. TLO, and other cases that have corroded students’ rights at school?

We have a lot of heroic myths about the Supreme Court, but I believe in telling young people the truth. The Supreme Court, for most of American history, has been a profoundly conservative or even reactionary institution. Remember that for the first hundred years of American history, the Supreme Court did absolutely nothing for slaves except to cement slavery into the law in the Dred Scott decision, which found that African-Americans have no rights that the white man is bound into respect. It’s hard to find a more detailed exposition of American racism than the Dred Scott decision. Even after the Civil War, the Supreme Court for a long period of time gutted the Equal Protection Clause with Plessy v. Ferguson, which upheld a militant apartheid Jim Crow. It was only in 1954 in Brown v. Board of Education, and for a decade before that and a decade after, that the Supreme Court was in its liberal period with the Warren Court. It won the halo that it still has, to a certain extent, today of being a champion of the rights of the people. But for most of our history it has been on the right wing of the political spectrum, and that’s the way it behaves today. It acts very much as a right-wing bulwark against democracy and against the rights of the people.

When young people discover that they’ve not won a lot of victories in the Supreme Court, they need to understand that that’s true of the rights of everybody in America. Basically the Supreme Court has stood with corporate power, with the government over individuals, and in defense of property rights.

Which high-school-related Supreme Court opinion would you like to read that hasn’t been written yet?

I would love to see a progressive Supreme Court revise San Antonio v. Rodriguez, which found that there’s no federal constitutional right to education, much less an excellent education. I always liked Justice Marshall’s opinion in that case, where he said that education is essential to effective democratic citizenship. Because of that, Marshall said, the Equal Protection Clause does guarantee the right of all children to an excellent public education. But we know that the public schools are of dramatically varying quality across the country and within states across wealthy and poor areas. We really need to develop a uniform national commitment to excellent education for all.

In one of the exercises in your book, “We the Students,” you encourage students to pretend they are interviewing the nine Supreme Court justices about a school prayer case called Lee v. Weisman. If you could interview any iteration of the Supreme Court on any high-school-related case, what would you ask about? 

Because Tinker v. Des Moines School District was such a masterpiece of student rights, I would love to go back and interview Justice Fortas and all the members of the Court about what their thoughts and hopes were for American students and American education. I always think that the premise of the decision is that students at school are not there just as the objects of education — little receptacles for the propaganda of the state. They are actually there as growing, active democratic citizens themselves. And so I think of Justice Fortas saying that Mary Beth Tinker was not detracting from the educational process when she began her nonviolent protest against the Vietnam War; she was actually contributing to it. She was participating in educating the other kids and her teachers about what was happening. She was starting a conversation. To me, all education begins with people asking questions and talking.

Apart from “We the Students,” can you recommend any law books, blogs, or podcasts for teenagers who are interested in the law?

I’ve always loved the Peter Irons series, which has audiotapes of Supreme Court arguments. I think it’s called “We the People.” It’s very useful to hear decisions being argued before they’re handed down. When you read something like Roe v. Wade or Brown v. Board of Education, you think somehow that the conclusion was foreordained. Then when you go back and listen to the Supreme Court argument, you realize that the lawyers and the justices are just figuring out the theories under which they’re going to decide the cases.


Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, BU Law professor Jay Wexler, and Lawfare editor-in-chief Benjamin Wittes. 

Wednesday, March 27, 2019

Oral Argument Summary: Benisek v. Lamone

by Curtis Herbert

The Supreme Court heard arguments yesterday morning in a partisan gerrymandering case called Lamone v. Benisek.

Gerrymandering is the practice of drawing districts creatively so that a certain political party is favored. For example, assume that there are three districts next to each other in Ohio. District O has 80% Republicans and 20% Democrats, and Districts A and B both have 40% R’s and 60% D’s. The government in power is majority-Republican. It draws the districts’ lines in order to move some of the Republican voters from O to A, making district A 55% R’s to 45% D’s. It then moves some of the Democratic voters from A to O, making district O 65% R’s and 35% D’s. The administration repeats the process, this time from O to B. At the end of the redrawing process, A and B are set to vote Republican by 5% and O is a toss-up. Nobody really likes that districts can be manipulated this way, but the question is whether the Constitution forbids it.

In this case, Linda Lamone, an administrator of the Maryland Board of Elections, argues that the Constitution does not forbid gerrymandering. A group of Maryland voters (“Benisek”) argues that it does.

Two main arguments against partisan gerrymandering were discussed yesterday morning. The first was that partisan gerrymandering violates voters’ free speech rights under the First Amendment, and the second was that it violates the Equal Protection Clause. The liberal justices seemed inclined to side with the voters on either claim, while the conservatives indicated that partisan gerrymandering is constitutional. Surprisingly, Justice Kavanaugh might be the swing vote by voting for Benisek on Equal Protection grounds.

Lamone framed the First Amendment argument like this: “The question presented in this context by the First Amendment is whether the state officials are deliberately burdening particular groups of voters because of the way those voters have expressed themselves.”

Now the Court must address whether a vote is “speech” protected by the First Amendment, and if it is, whether the government violates the First Amendment when it discriminates against that speech through partisan gerrymandering

I think the answer to these questions is yes and no, respectively. Why such a weird position? The Supreme Court, generally speaking, recognizes that you have freedom of speech when you’re conveying a message, and voting conveys the message of which candidate you support. But never has the Court forced anyone to listen, much less follow the directions of someone’s expressive speech when they’re acting in a private capacity. Therefore, voters’ free speech rights aren’t violated when their expressive speech isn’t listened to.

But if gerrymandering doesn’t violate people’s free speech rights, then the government doesn’t have to change its ways, right? Not so. The federal government may be obligated to take action because of the Guarantee Clause, which requires the United States to “Guarantee to each state a Republican form of government.” The entire point of our system is that the people, who retain sovereignty, delegate their sovereign authority to representatives who make decisions for them. Partisan gerrymandering annihilates this structure by making votes effectively irrelevant, inhibiting the ability of the people to delegate their authority. Although Americans have allowed elected officials to redraw districts for hundreds of years, that doesn’t mean the practice is constitutional. We shouldn’t assume that Americans can delegate the authority to impair our representative republic.

To learn more about this case, you can read the oral argument transcript and visit the case’s page on SCOTUSblog.