Pennsylvania’s legislature gained a third chamber over the weekend. No one can quite say how it happened.
Usually, such as sweeping constitutional alteration would require an amendment, if not a state convention. The change would have been deliberated and argued about in newspapers and on television. There would be op-eds and blog posts, ads on the radio, chatter in the streets. Instead, this one arose by other means. “Organically,” you might say, in the way that cancer is organic. This mutation in the weakened body politic metastasized, leaving an unseemly growth on the state constitution, one that threatens to kill the whole patient.
The change took the people of the Keystone State unawares. While we dozed through a rainy three-day weekend, the Pennsylvania Supreme Court declared itself a lawmaking body, one over which the real legislators have no veto. They did so for all the usual reasons tyrants do what they do. “Fairness.” “Equity.” “Justice.” All things that, in a person’s own mind, he and he alone represents. They had a good story to tell, one that the mainstream media was apt to believe. The only thing they lacked was the law. But no matter. Courts do not need such things in Pennsylvania anymore.
The court’s Democratic majority would deny that any such change took place. They would say they were doing their job, interpreting the law, not making it up out of whole cloth. But not long after inventing a new requirement for congressional districting, the Pennsylvania Supreme Court invented the map, too. Rather than judging the legislature’s efforts against the legal standard (a standard they pulled out of thin air, but a standard, at least) they took the pencil out of the legislature’s hands and said “we’ll just write the thing ourselves.”
In other countries, in other times, we would call that a coup d’état. Here, it’s just another day in the life of a country where the people have forgotten that the legislature is the branch that is supposed to write laws. Want to change the laws? Change the legislature. Win an election. Or, if you can’t do that, apparently, just run to court and get someone to override the people’s will.
Step 1: Invent A New Standard
The power-grab had three stages. The court’s majority carried out the first step in January when they issued an order striking down the Congressional Redistricting Act of 2011 (the act that created the congressional districts for the next five elections based on the 2010 census). The timing alone raises an eyebrow. How did a law passed in 2011 meet constitutional requirements then, but get struck down seven years later in January 2018? What changed in those seven years to push the law from constitutional to unconstitutional?
Nothing changed with the law, which admittedly created the most bizarrely shaped House districts the Commonwealth had ever seen. But Pennsylvania’s constitution contains no rule against weird shapes, and the United States Supreme Court had explicitly held that political gerrymanders, like the one passed in 2011, were legal. In Easley v. Cromartie in 2001, the U.S. Supreme Court held that unlike racial gerrymanders, political gerrymanders and gerrymanders to protect incumbents were allowed under the Constitution. In the 2004 case of Vieth v. Jubelirer, which concerned the previous version of Pennsylvania’s map, Justice Sandra Day O’Connor held that the issue of political gerrymandering was not even justiciable; that is, it was not a subject that courts had the authority to decide. And nothing in Pennsylvania’s body of state constitutional law changed in those years.
The real difference came in 2015, with the election of three Democrats to the state supreme court, giving the party a 5-2 majority. In a legislature, change of party control means new laws are bound to follow, but courts aren’t typically openly partisan. One legislature’s acts may not bind the next, but courts are bound by precedent, which should ensure that abstract principles of law do not shift with the wind the way the political branches do.
But when judges are elected in partisan elections, as is the case in Pennsylvania, there really are no non-political branches. Judicial elections are a strange beast, and unlike a normal election, candidates may not promise to do certain things once in office. They still pretend that they are objective and disinterested, all the while running with the endorsement of one party or the other. The voters see through the ruse, and vote for the candidate whose party membership implies their course of action and their fealty to either Right or Left.
A challenge to the Republican map was inevitable as soon as Democrats controlled the court. Four of the five Democrats joined in a 4-3 decision declaring that the now seven-year-old map “clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania” and ordered the legislature to draft a new one in accordance with the rules it invented. (The fifth Democrat joined in part and dissented in part.)
Any new map would have to “consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”
Note that while complaining about the sparsity of Democratic representatives elected under the 2011 map, the court did not include the “efficiency gap” theory of redistricting that is currently featured in a federal Supreme Court case on political gerrymandering as among the new requirements the legislature must follow in drawing district lines. Perhaps the idea is too obviously flawed even for this flawed decision.
The dissenting justices pointed out the problems with this order. For one thing, as Justice Sallie Mundy noted, “the Court fails to identify the specific provision [the 2011 map] violates.” This is a serious problem for anyone trying to make a map that is constitutional. The court did not even tell the legislature which laws they broke! In a subsequent opinion, when remedial plans were already being drafted, the court finally identified the provision in question, saying the districts prevented “free and fair” elections, a term so broad as to be almost meaningless in the context of line-drawing.
Chief Justice Thomas Saylor, in a longer dissent, noted all of the precedents the majority was disregarding and cautioned against assuming jurisdiction over something that had always been the province of the legislature. But such objections were ignored. The court’s opinion, which amazingly cited no case law and no constitutional provision, was not an attempt at persuasion. It was a show of force, not reason. The Democrats had the votes, so the law be damned.
Step 2: Declare The Standard Isn’t Met
With the January 2018 order from the court, the legislature had very little guidance. The goals the court dictated were vague and contradictory, but this is the problem with all legislative redistricting. It is not a simple math problem, because people disagree on which problem they are trying to solve. Making the districts compact and contiguous is easy enough, and there are even computer formulas that could do that automatically. But compactness is not the only goal. Keeping communities together seemed also to animate the court’s imagination, as did keeping the population of the districts “as nearly equal in population as practicable.”
Groups from both major parties submitted maps that they believed met these requirements, as did outside groups. All of them displayed some advantage to themselves, naturally, but all were more compact and divided fewer communities than the 2011 map. A court interested in principle, not power, would have seen this as a victory. They would have let the political process take its course, with the Republican legislature and Democratic governor negotiating a compromise that they could both live with, while staying within the rules the court had just invented.
That is not what happened. Filing deadlines for candidates to enter the congressional races were fast approaching and the court determined to ram through their new policy in time for the 2018 elections (this was the issue that caused one Democrat, Justice Max Baer, to dissent from the four-judge majority). The majority clearly knew that they could use the old map once more if they wanted, which is why their order allowed the upcoming special election in the 18th district to proceed under the old lines. The artificial deadline short-circuited the process, guaranteeing that no consensus could emerge from the political branches in Harrisburg.
When they failed to agree immediately, the court took over, even though as Justice Baer noted, “under these circumstances, Pennsylvania and federal law permit the use of the existing, albeit unconstitutional, map for one final election.” (Baer cited caselaw to prove his point, something that must have baffled his Democratic colleagues.) With that, the court took the decision out of the hands of the people’s representatives and deposited it into its own.
Step 3: Do The Legislature’s Job
Having set impossible goals, the court declared that no one met them. They proceeded to do the job of legislature and governor at the same time, drawing and approving their own map. The Democrats’ map delighted their fellow Democrats for the same reason that the Republicans’ 2011 map had thrilled Republicans: it meant better prospects for their own party at the next election.
A comparison of the two shows that the lines, at least, are neater. If tidiness were a constitutional requirement, the court’s diktat would have been far more in line with it than the legislature’s law. But in doing the legislature’s job, the court now had to make the legislature’s choices. They were constrained by the rules they invented last month, but within those rules there are still many options. Which is the best? Conveniently, the court set itself up as the judge of its own efforts.
When the self-appointed cartographers found themselves forced to make a choice, they consistently made the choice that most benefited Democrats. Consider the five-county area around Philadelphia. As noted in the excellent New York Times analysis of the new lines, the “five core counties of the Philadelphia suburbs contain enough people for 5.7 congressional districts. The first five are easy enough, but the Sixth, which would presumably include the final seven-tenths of a district from the Philadelphia area and then three-tenths from somewhere else, is hard to draw. Alone, none of the adjacent counties combine with the outermost Philadelphia suburbs to create a natural district that represents a community of interest.”
Some maps submitted to the court chose to solve this issue by dividing Chester County between a Berks County-based district and a Lancaster County-centered one. The Democrats on the court chose to leave Chester intact; to make up the difference, they added in the most Democratic parts of Berks County, shifting the new 6th district firmly into Democratic territory — a politically motivated dissection of the county that the court itself had criticized in its February 7 opinion (see footnote 17). The choice is not illegitimate, but it is a political judgment, the type of thing courts used to recognize as better made by the political branches of government.
Similarly, the 10th district, needing to add population beyond Dauphin County, reaches into the bluest suburbs of Harrisburg in Cumberland County and sends a tentacle down into York County to find the only Democratic areas in that heavily Republican county. Combining Scranton and Wilkes-Barre in the new 8th district, something previous legislatures of either party almost never did, also aims at making that district more Democratic. The line between the 1st and 4th districts was shifted from that between their predecessors to ensure that enough Democrats are roped into the Bucks County-based 1st to negate the Republican advantage in that county, but not so many as to make the more Democratic Montgomery County-based 4th a true swing district. Allegheny County could have been divided neatly, but the pattern of Democratic-leaning suburbs of Pittsburgh meant that a more Democrat-friendly map involved the 18th district being shaped like the Wu-Tang symbol.
And so on. Republican voters are packed and cracked all across the map in a flattering, if slightly neater, Democratic imitation of the GOP map of 2011. The reason the U.S. Supreme Court hesitated to make political gerrymandering a court-decided issue in Veith was precisely to avoid having courts make these kinds of political decisions. Instead of applying a standard to the legislature’s acts, the court itself became a super-legislature, a new House of Lords over which neither the governor not the real legislature has any veto power. Today, four judges rule Pennsylvania.
Result: A Weakened System
Beyond the illegitimacy of the redistricting decision, wading into political squabbles also weakens the court’s reputation. Trusting in the justice system requires people to believe that judges are impartial, that they doff personal and political feelings when they don their robes and rule based on the facts and the law. This was already a stretch in a system where judges are elected on party tickets. Now, such a belief is impossible in the face of blatant evidence that a majority of the court has elevated party over duty.
Partisans on the winning side will not care about any of this. They got what they wanted, not through electing a legislature but by electing a court that reconstituted itself as a legislature. Most Democrats — honest people like Justice Baer are the exception — will take their victory and laugh all the way to the bank. They will not stop laughing until a Republican court does the same thing to them, at which point both parties will switch positions and issue new press releases contradicting the old ones. The fight will go on, and the system will be a little more degraded for it.
One hopes that seeing the nakedly partisan power grab will have an impact on one important voter: Justice Anthony Kennedy. As he is on so many issues, Kennedy is the swing vote when gerrymandering cases reach the Supreme Court, as one did earlier this year. It was Kennedy who, while siding with the majority in Vieth in 2004, wrote separately to say that, while there was yet no manageable standard for courts to apply to political gerrymandering cases, there might be such a standard someday and, if it were discovered, he would consider applying it. “I would not,” he wrote, “foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
In Gill v. Whitford, now pending before the federal Supreme Court, Democrats think they have found that standard. With some dubious math applied to inconvenient facts, they think they can construct a system by which judges may impartially construct “fair” legislative districts. But as this case shows quite clearly, no system is a philosopher’s stone for transmuting political choices into non-political judgments.
Politics is a part of a democratic republic. It is how we, as political animals, govern ourselves. Even within a system of neutral guidelines, choices must be made, and those choices have political consequences. When a court is compelled to make those choices, they do not magically become apolitical choices. To the contrary, the apolitical courts take on a political sheen. As bad as this decision is for the rule of law in Pennsylvania, one silver lining might be that it shows why it would be an even worse idea for the Supreme Court to apply a similar tactic nationwide.