The Supreme Court’s decision today upholding Arizona’s Independent Redistricting Commission will not get the headlines of last week’s momentous decisions on marriage equality and health care. But the three cases together illustrate an unfamiliar division on the Court between those Justices who care about consequences and those who would “let justice be done though the heavens may fall.” In each case, the fallout from a decision going the other way would have been dramatic, and the Court decided instead to keep Pandora’s Box closed.
The Arizona case presented the question whether the state’s redistricting commission, which was created by voter initiative, violated the Elections Clause of the Constitution. That clause (Article I, Section 4) states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” For the challengers to the Commission, Legislature means Legislature — not voters, not commissions, not the legislative process writ large – but rather the representatives assembled in states in forms akin to the Congress.
This literalist view has great appeal, especially when you consider that other mentions of the word Legislature in the Constitution – such as in provisions dealing with ratification of constitutional amendments or the appointment of Senators prior to the 17th Amendment – have been held not to include the initiative.
Yet, what the majority in today’s decision realizes and the dissents gloss over, is that a turn toward literalism would have had an incredibly destabilizing effect on election law. Not only would many redistricting commissions, such as Arizona and California’s, been thrown out, but any state regulation of congressional elections that was passed by initiative would have been legally vulnerable. This would have cast doubt, for instance, on California’s nonpartisan primary, Arizona’s voter ID law, and any number of other laws regulating voter registration, campaign financing, and ballot technology.
The carnage would not have stopped with the regulations passed by initiative. Hundreds of provisions in state constitutions, which were passed by state conventions rather than legislatures, would have been open to question.
An analogous point can be made about the Court’s decisions in King v. Burwell, upholding Obamacare, and Obergefell v. Hodges, striking down bans on same-sex marriage. Had the plaintiffs won in Burwell, millions of people would have lost health insurance under the Affordable Care Act. Again, the fight in that case was joined between those advocating for a literal interpretation of a provision dealing with health care exchanges, and those who view such an interpretation of four words as upending the entire statutory scheme.
One might have thought that the marriage equality case points in the other direction. After all the opinion is “activist” in the sense that the Court struck down bans passed by the democratic branches of state governments. But by the time the Court heard the case, individuals in most of the country and in more than thirty states were free to marry whoever they pleased, regardless of gender. They organized their lives around those assumptions, adopted or bore children with expectations as to the security of the parents’ marriages, and had begun receiving benefits under federal law. Of course, for many of them, these rights also came from the stroke of a judge’s pen and were urged on by the Court’s earlier decision striking down the federal Defense of Marriage Act. But had the Court reversed course in these newest cases, it is difficult to see how it could unwind the many marriages that had already taken place over the past few years.
While observers of the Court will read into these opinions – as they should — larger principles of legislative deference or fundamental rights or respect for the democratic process, we should not ignore the opinions’ pragmatic side. Indeed, the Court broke new ground with these opinions, but it also dodged several bullets. Avoiding dramatic instability in the law, while rarely a rallying cry, is an achievement nonetheless.