Special Briefing: The Chief Justice Plays Both Sides

Special Briefing:  The Chief Justice Plays Both Sides
SourceGetty

Why you should care

Because big decisions are never simple.

This is an OZY Special Briefing, an extension of the Presidential Daily Brief. The Special Briefing tells you what you need to know about an important issue, individual or story that is making news. Each one serves up an interesting selection of facts, opinions, images and videos in order to catch you up and vault you ahead.

WHAT TO KNOW

What happened? It’s not our call. That was the message from the U.S. Supreme Court Thursday as justices closed the term with two major decisions: on whether partisan gerrymandering is constitutional, and about adding a question to the 2020 census asking whether a respondent is a U.S. citizen. In both cases, the highest court in the land effectively decided to punt. In the first case — which examined congressional maps drawn to favor Republicans in North Carolina and Democrats in Maryland — the court said questions of political gerrymandering should be handled at the state level, not by federal courts. For the census, it sent the case back to lower courts, saying it didn’t buy the Trump administration’s argument for a citizenship question but leaving the door open for a better reason to include it.

Why does it matter? Both cases strike at the heart of representation in America, promising a massive impact by affirming political gerrymandering as a fact of life, as well as potentially (though not completely) killing the citizenship question for 2020. They show how the court generally leans conservative — but Chief Justice John Roberts is still capable of throwing a curveball at the Trump administration.

HOW TO THINK ABOUT IT

Back to the drawing board. Both parties are guilty of redrawing electoral districts to suit their needs, and the tactics have gotten only more precise with more powerful software: These days neighborhoods are sliced and diced down to the block. Under the Voting Rights Act, it’s illegal to do so with the aim of putting minority groups at a disadvantage. But the Supreme Court has long held that political gerrymandering is fair game. So it did again on Thursday, with Roberts and the court’s conservative majority ruling that federal courts should stay out of what are essentially state issues (so long as the gerrymandering isn’t racially motivated). That reasoning means Republicans and Democrats alike will be able to continue redistricting to maintain power — with Republicans the net winners for now, given their control of the majority of state legislatures nationwide.

But how “bad” is it? While it’s true that Republicans have gained more from gerrymandering in recent years, since they have far more one-party control over states, Democrats also have a tendency to overestimate the tactic as a boogeyman. Their voters are more clustered in urban areas, meaning blue districts will naturally be bluer. And while many saw the creative Republican map-drawing following the 2010 census as securing a GOP-controlled House of Representatives for a decade, Democrats still managed to flip the House in 2018. As the Roberts decision noted, both federal and state legislatures can still make redistricting less partisan: “That avenue for reform established by the Framers, and used by Congress in the past, remains open.”

Count on me. The census decision — a muddle that saw Roberts siding with the court’s liberal wing on the pivotal question — was a big, if potentially temporary, win for advocates who argue that asking about citizenship will hurt communities with large numbers of immigrants. Data from the once-in-a-decade survey determines all kinds of decisions about how federal resources are distributed across the country. So if, as one Census Bureau estimate suggests, 8 percent of households with noncitizens don’t answer because they fear their citizenship information will be used to target family members for deportation, the results — and the money — will be skewed. It could even affect which states gain or lose congressional seats. This has also become a partisan issue, since heavily immigrant communities tend to lean toward Democrats.

Census on hold? The Trump administration had said that it was asking about citizenship so it could better enforce the Voting Rights Act, a reasoning the court called “contrived” while leaving the door open for the question to appear on the census if the administration is more honest about its aims. Time is running short. Counting is scheduled to start in January in remote parts of Alaska, and forms will be mailed out in March, but Trump said Thursday on Twitter that he is looking into delaying the census because of the “ridiculous” ruling.

WHAT TO READ

How Gerrymandering Paved the Way for the U.S.’s Anti-Abortion Movement, by Adrian Horton, Tom McCarthy and Jessica Glenza in The Guardian

“Thanks to gerrymandering … the only elections many seated officials have to worry about are primary challenges from opponents more extreme than they are, creating a kind of ideological arms race that is producing increasingly distorted policy.”

The Consequences of Asking the Citizenship Question, by Jo Craven McGinty in The Wall Street Journal

“‘For every person not counted in Florida or California, Ohio and Pennsylvania make money,’ said Andrew Reamer, a research professor at the Institute of Public Policy at George Washington University. ‘The undercount doesn’t change the size of the pie. It changes who gets what slice.’”

WHAT TO WATCH

Gerrymandering: ‘Packing and Cracking’ Is the Meat and Potatoes of Partisan Redistricting

“The party that’s doing the districting is going to look at the party that they wish to disfavor with their plan and pack as many of their voters into as few districts as possible.”

Watch on USA Today on YouTube:

Do Supreme Court Justices Always Vote in Line With the Presidents That Nominated Them?

“The current Supreme Court has the potential to be the most conservative Supreme Court that we’ve seen in modern times.”

Watch on NBC News on YouTube:

WHAT TO SAY AT THE WATERCOOLER

A (dead) man with a plan. Aside from being decided on the same day, both cases had the same force behind them: Not only was strategist Thomas Hofeller the lead Republican behind the redrawn North Carolina maps, but the conservative operative also talked to officials at the Commerce Department about introducing a citizenship question as early as January 2015. That’s according to emails obtained from his hard drives — by his estranged, politically progressive daughter — after he died last August at age 76.

OZYNeed to Know

Quick briefings and smart previews you can't live without, making sure you not only survive but can thrive at the water cooler.