The Briefing, Vol. VI, Issue 28
UPDATED: July 10, 2018
- How a conservative court could change American politics, part one
- State redistricting powers could be reaffirmed
- The future of Voter ID
- Trump trashes Tester in Montana — will it help?
President Trump chose Justice Anthony Kennedy’s replacement Monday night — Brett Kavanaugh. It’s an interesting choice because Trump went back into the Bush Republican Party to select a nominee who will be controversial not because of his ideology as much as because of his work as a party operative who helped write the Starr Report and served in the Bush White House.
Still, his selection is widely viewed as a big upgrade for conservatives over Kennedy, for whom (like Justice Neil Gorsuch) he once clerked. And it could change how the court operates for years to come.
Last week, we discussed how this might affect Senate races. Democratic incumbents in Red states will face intense pressure to support the nominee — especially those who already voted for Neil Gorsuch last year and thus have a great deal of sunk costs in showing support for Trump.
But there are political implications that go well beyond this year’s races. When Trump makes his pick, he will be shaping the future of the court for at least as long as the other four conservative justices (the oldest is Clarence Thomas, who just turned 70) remain alive.
Another thing: If Trump follows through in picking a justice from his now-famous list, he will have won an immense amount of additional credibility with conservatives, to the point that outspoken Never-Trumpers will be fewer and further between by the time his re-election approaches. Whatever their feelings about Trump, conservatives of every stripe will at least feel confident that a second Trump term will shift the court further still to the right for the long haul, because it would likely afford him the chance to replace the oldest conservatives (Thomas and Samuel Alito) and the exit of at least one if not two older justices in the liberal wing, if this doesn’t happen sooner.
For now, if Trump chooses any of the three judges he is reportedly considering — Amy Coney Barrett, Brett Kavanaugh, or Raymond Kethledge — it will result in a substantially more conservative institution than it was last month when Kennedy handed down his final ruling.
No one can guess how any individual judge will rule in the future on any given issue — don’t forget what happened when Chief Justice John Roberts upheld Obamacare.
But some political issues could change dramatically as a result of this selection. If they do, then the politics around them will likely change as well. The party that wins on the issue now may find the tables turned. The arguments used by one party or another may become untenable soon.
Over the next few weeks, in addition to the approaching elections, we will look at some key issues whose political makeup could change fundamentally over the next few years as a result of Trump’s selection. This week, we will look at two issues that deal directly with elections — redistricting and voter integrity laws.
The Supreme Court has recently shown itself unwilling to reach down into states and meddle in their jurisprudence on the issue of redistricting. It showed this much when it refused to reconsider the Pennsylvania Supreme Court’s (basically partisan) decision invalidating a Republican-drawn map.
Don’t expect a more conservative court to behave differently. If anything, a post-Kennedy court will adhere to the same principle in such cases, allowing state courts to interpret their own state constitutions except in egregious causes.
But it also won’t accept lower federal courts to go meddling in redistricting, as in the recent Wisconsin case that the justices sent back down this term. That case, which would help Democrats in most states if it were decided in their favor, is the sort of case where a new conservative court would likely affirm state power over the redistricting process and preserve the status quo.
In addition, a conservative court may be much more eager to decide the recent rash of lawsuits that has been attempting to establish federal as opposed to state power over redistricting principles. The Wisconsin case, if the lower court ruling were upheld, would have been especially harmful to the consensus understanding of state powers under the Constitution. It would have required the setting aside of seats not for minority voters, but for actual political parties.
In Kennedy’s last term, the court was content to punt these questions and send them back down to lower courts. A post-Kennedy court might be more eager to reaffirm the status quo — that state governments are sovereign when it comes to creating their state legislative and congressional districts after each census, whether they want to do it by vote of the legislature or by nonpartisan panel.
There is also a chance that the justices will weigh in on some of the less coherent areas of law in redistricting. Specifically, in all but the most egregious cases, it is currently very hard to distinguish between state compliance with the Voting Rights Act in creation of majority-minority districts (a legal requirement) from unconstitutional racial gerrymandering (a big constitutional no-no).
Democrats would love nothing more than to create a court precedent that gives so-called crossover districts — i.e., districts where white liberals and minority voters together elect Democrats — some kind of special status in law, in lieu of true majority-minority districts. It would immensely benefit Democrats if the bar for minority representation were thus set lower, so that set-aside districts currently packed with Democrat-leaning black or Hispanic voters could be cracked up and converted into a larger number of Democratic-leaning districts.
Under a conservative Supreme Court, the trend in federal courts toward such Democratic-friendly interventions would almost certainly be nipped in the bud.
Meanwhile, Republican state legislatures (as in North Carolina and Texas, whose maps have been under constant court challenge for years) would find themselves with a much freer hand in 2021 and beyond to draw districts that maximize partisan advantage without being changed by the courts.
It has become the conventional Democratic wisdom that racism is the only possible motivation for election integrity measures such as Voter ID or the trimming from registration rolls of voters who have evidently moved out of state, so that others cannot vote on their behalf — something that is not hard to do if one possesses knowledge of which voters are gone.
That this is just plain racism is not the popular view, nor is it a particularly well reasoned view, but it has enjoyed some support among left-wing pundits and even in the lower courts lately.
Ohio’s recent Supreme Court win in the case Husted v. Randolph Institute — allowing the state to purge non-voters who have evidently moved away — would remain unaffected by Kennedy’s replacement. But the voter ID cases are more complicated.
At the district level and at times even the circuit level, courts have struck down voter ID laws, and the Supreme Court has reacted to this somewhat unpredictably. Recent cases have challenged such laws in Texas (where the law was ultimately upheld by the circuit court) and North Carolina (where it was struck down). The Supreme Court declined to hear an appeal in that latter case. It’s not clear which justices might have wanted to hear the case, and whether Kennedy’s replacement might be the fourth justice required to hear such an appeal.
In 2008, a 6-3 majority upheld Indiana’s voter ID law. Justice Kennedy was part of that majority, and so was liberal Justice John Paul Stevens, who has since voiced some regret that he ruled as he did. It’s highly likely at this point that the case would come down 5-4 if it were being decided today.
And assuming Trump’s pick is confirmed, that’s how it will remain in most such cases, except with a wrinkle: The 6-3 decision had two separate rationales: that of Stevens and Kennedy and that of the conservatives. The three conservative justices (Thomas, Antonin Scalia, and Samuel Alito) argued that federal courts shouldn’t intervene in such cases at all, absent obvious evidence of overwhelming burdens being placed on lawful voters or clear discriminatory intent. Such a standard would prevent most lower court interventions before they start. The Stevens opinion, on the other hand, in which Chief Justice Roberts also joined, was much more open to court interventions, just not the one against Indiana.
Would Roberts join a more conservative majority today in the interest of having a single majority opinion? It’s anyone’s guess. But there’s at least a chance that a post-Kennedy court could produce a majority precedent discouraging such challenges to election integrity measures, resulting in their being upheld more broadly and deployed in more elections over time.
Although there’s no evidence that voter fraud is as pervasive as some argue (including President Trump), there is ample evidence that it does happen on a limited basis, that it can sway close races especially at the local level, that the U.S. has a significant and consequential history of voter fraud, and that the uncontradicted appearance of integrity in elections is a genuine state interest in that it encourages legitimate voters to participate in greater numbers without fear that there’s any chance their votes are being canceled out by cheaters.
Nor is there any documented evidence that voter ID suppresses participation by lawful voters of any race — a fatal weakness in many of the cases brought against it.
In any case, Trump’s replacement of Kennedy probably means that state voter integrity measures are here to stay for a while, or for good. They will be slightly safer in a post-Kennedy court than they were this term, which is to say quite safe.
And so states with willing majorities will be encouraged to follow the rest of the world’s democracies (including those of Mexico and the Philippines) in requiring basic identification of voters at the polls.
Democratic Rep. Kyrsten Sinema’s promise to vote against Chuck Schumer as Senate Majority Leader is an oddly gimmicky move in what’s shaping up to be a very close election to replace retiring Sen. Jeff Flake, R.
Republicans will choose their nominee on August 28, with Rep. Martha McSally leading the field for the nomination against two more anti-establishment choices, former state Sen. Kelli Ward and former Maricopa Sheriff Joe Arpaio.
President Trump’s trip to Montana contrasted heavily with his recent trip to West Virginia in one important aspect.
Trump favorably mentioned the Republicans’ senate nominee, Patrick Morrisey, but he refrained from negative comments about Sen. Joe Manchin, D-W.Va.. This could be because he still hopes to get Manchin’s vote for his Supreme Court nominee later this summer. This is another way in which the court battle is affecting politics in the short run.
In contrast, Trump does not expect to win the vote of Montana’s Sen. Jon Tester, D, who voted against confirming Justice Neil Gorsuch and has no real incentive to change his spots now. And so Trump tore into him during his visit to Montana. He spent a good long segment of his appearance in the Big Sky State trashing the two-term senator for being out of touch with his constituents and a tool of Washington liberals.
Trump’s attacks on Tester were especially powerful because he pointed out and ridiculed Tester’s attempt to frame himself as a Democratic Trump ally.
“I see Jon Tester saying nice things about me,” Trump said. “…But he never votes for me…Tester doesn’t share your values. … Jon Tester says one thing when he’s in Montana, but I’m telling you …he does the exact opposite.”
Trump also brought up again Tester’s involvement in spreading negative stories about his Veterans Affairs nominee, Ronnie Jackson. In that context, Trump urged a vote for GOP nominee Matt Rosendale.
No poll has yet measured how well this sort of attack will work against Tester, but it’s everything Senate Republicans were hoping for from Trump. Unlike in West Virginia, he leveraged his popularity to tear down a Democratic incumbent.