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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Thinking About Democracy: Justice Stevens and the Roberts Court

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July 18, 2006

In the last week of June, the Supreme Court decided two cases that have significant implications for the law of American democracy. The first one, League of United Latin American Citizens v. Perry ("LULAC"), involved Texas' mid-decade congressional redistricting plan backed by Representative Tom DeLay. The other case, Hamdan v. Rumsfeld, was a challenge to the authority of the military commissions formed to try prisoners detained in Guantanamo Bay, Cuba. Although these two opinions obviously address very different subjects, they have something important in common.

There is always a danger in writing about Supreme Court cases too soon after they have been decided. Our own views about how such important cases should have been decided may detract from our ability to see what the Court has actually said. At the risk of falling prey to this risk, I think that both Hamdan and LULAC represent a serious and promising effort to grapple with the proper role of the federal judiciary in a democratic society. Both cases address the role that federal courts ought to play in protecting those who cannot adequately protect their interests through ordinary political channels. Although this is a longstanding preoccupation of the federal courts, what is distinctive about these cases is that this protection comes not through constitutional adjudication but through statutory interpretation. In this sense, I take the opinions in these two cases to represent a good week for the Justice John Paul Stevens and, more importantly, a good week for democracy.

I start with the LULAC opinion, in which the Supreme Court held that the Texas legislature had violated Section 2 of the Voting Rights Act, by redrawing a Laredo-area district (District 23) so as to prevent Latinos from electing candidates of their choice. At first glance, it might seem odd to give Justice Stevens credit. After all, the opinion was authored by Justice Kennedy. Moreover, Justice Stevens dissented from the LULAC Court's holding on the issue upon which most commentators had focused before oral argument: whether Texas' redistricting should be struck down as an unconstitutional partisan gerrymander. Justice Stevens believed that the Texas plan should be deemed unconstitutional because it "violate[d] the sovereign's duty to govern impartially," but a majority of the Court disagreed, while leaving the constitutional standard to govern partisan gerrymandering claims unclear.

While Justice Stevens' position on the partisan gerrymandering claim did not carry the day, an examination of the transcript from the oral argument suggests that he played an important role in developing the theory upon which the Court relied, in holding that the newly drawn District 23 violated the Voting Rights Act. Section 2 of that Act broadly prohibits election practices that result in the denial or abridgment of the vote on account of race. The statute itself is imprecise in what it prohibits, but the Supreme Court's 1986 decision in Thornburgh v. Gingles required minority voters to show three things to challenge a redistricting plan: 1) that they're sufficiently large and geographically compact, 2) that the racial minority is politically cohesive, and 3) that there is sufficient bloc voting by whites which ordinarily defeats minority-preferred candidates.

During the argument, Justice Stevens asked Texas' attorney, "if there were a violation in district 23 of section 2, could it be cured by creating a district ... farther to the east," referring to a new majority-Latino district that the state had created (District 25). That district combined two groups of Latinos who were geographically dispersed and culturally distinct. In asking this question, Justice Stevens specifically referred to the constitutional limitations that the Court placed on noncompact majority-minority districts in Shaw v. Hunt ("Shaw II"). In response, Texas' lawyer acknowledged that this would be impermissible if the two districts were in "wholly different areas" of the state.

The Court's opinion with respect to District 23 embraces a more elaborate version of the theory that Justice Stevens floated at oral argument. The analysis consists of three parts.

1. The Court applied the three Gingles factors to District 23 and found that they were satisfied. It concluded that the redrawn District 23 deprived Laredo-area Latinos of an "opportunity districts," by preventing them from electing a congressional representative of their choice.

2. The Court addressed the question whether Texas' creation of a new majority-Latino district elsewhere in the state could "make up" for the harm that Latinos suffered through the redrawing of District 23. In concluding that it could not, the Court specifically referred to Shaw II. In what is among the most significant parts of its opinion, LULAC holds that a state is allowed "to use one majority-minority district to compensate for the absence of another only when the racial group in each area had a §2 right and both could not be accommodated." The Court went to conclude that the Latinos in the newly created majority-minority district (District 25), did not have a Section 2 right because of the geographic dispersion and cultural dissimilarities between the two groups of Latinos in this district.

3. The Court concluded that, looking at the whole of the state, the "totality of circumstances" showed a violation of Section 2 of the Voting Rights Act. Prominent among the circumstances the Court thought relevant were the Texas legislature's efforts to protect the incumbent in District 23, despite his unpopularity among Latinos, and the creation of the noncompact District 25 which combined two communities of Latinos with little in common.

This is only a cursory summary of the Court's holding on the Section 2 issue, which my colleague Ned Foley has described and defended at greater length in this comment.

The key point that I wish to make is not just that the majority adopted Justice Stevens' theory. It is that the Court's opinion incorporates constitutional law's traditional preoccupation with the protection of minorities who cannot adequately protect their interests through ordinary political channels. This idea is hardly new. It can be traced to the Federalist Papers and finds its best-known exposition appears in the famous footnote 4 of United States v. Carolene Products (1938), in which the Supreme Court suggested that heightened judicial scrutiny might be appropriate where there is a curtailment of the political processes that can ordinarily be relied upon to protect minorities. In Texas, the Republicans' complete control over the redistrict process left Laredo's Latinos unable to protect their interests through the ordinary political process.

What's intriguing about LULAC is that it imports Carolene Products' concern with cases where the political process breaks down, from the realm of constitutional adjudication to that of statutory interpretation. In Carolene Products, the Court suggested that more searching constitutional scrutiny of state legislation might be warranted where a minority can't adequately protect its interests through the ordinary political process. In LULAC, the Court silently incorporates this insight into its interpretation of Section 2, construing that statute to proscribe an entrenched majority's effort to protect its own power by locking out a relatively powerless minority group. To be sure, the Court rejected the broader entrenchment claim that the Democratic Party had advanced, which challenged the constitutionality of Texas's entire plan rather than just one district within that plan. Still, its Section 2 holding represents a worthy effort to incorporate a traditional concern of constitutional adjudication into the interpretation of a civil rights statute.

A similar effort is apparent in the Supreme Court's opinion in Hamdan v. Rumsfeld, probably the most important decision of the term. The influence of Justice Stevens is self-evident in this case, as he wrote the majority opinion. Its implications for democratic governance may be less obvious, but they at least as significant as those in LULAC.

If there were ever a group of people that lacks the power to protect its interests through ordinary political channels, it is the prisoners being detained at Guantanamo Bay. A Yemeni national, Mr. Hamdan is not a U.S. citizen. Like the others detained at Guantanamo, he does not vote. And he is the quintessential disfavored minority, alleged to be working with al Qaeda in hostile activities directed at the United States government. A Carolene Products-type analysis might thus suggest that courts should direct searching constitutional scrutiny of the treatment of Guantanamo detainees, given their inability to protect their interests through the political branches of government.

Although that is not the route that the Court took in Hamdan, its reasoning ultimately serves a similar objective. This is difficult to see, given that the Court's opinion delves so deeply into seemingly arcane interpretive questions – so much so that it is easy to miss the forest through the trees. By stepping back a bit, however, it is evident that in Hamdan, as in LULAC, the Court expressly engages in statutory interpretation to protect minority interests in a manner that is more commonly associated with constitutional adjudication.

This is evident in several portions of Justice Stevens' opinion. Writing for the Court, he expressly finds it unnecessary to reach Hamdan's argument that Congress unconstitutionally suspended the write of habeas corpus, since "[o]rdinary principles of statutory construction suffice to rebut the Government's theory." Specifically, the opinion narrowly interprets a 2005 law passed by Congress, concluding that it did not mean to deprive federal courts of jurisdiction over pending cases like Hamdan's. The Court goes on to conclude that no prior act of Congress gave the President the authority to convene military commissions in the manner that has been done with those formed to try the Guantanamo detainees. The commissions, as the Court explained, denied prisoners certain "fundamental protections" such as "the right to be present." But again, the Court's reasoning does not rest on the Constitution, but instead on its interpretation of the Uniform Code of Military Justice, which the Court interprets to restrict the President's power to prescribe procedures for military commissions. Reading between the lines, the Court appears to be suggesting that basic procedural rights ought not be denied, without the clear assent of both political branches, the Congress and the President.

Though it is easy to get lost in the details, the key point here is that the Court relies on a nuanced construction of statutes to protect the rights of a disfavored minority. For Justice Stevens and, at least for the moment, a majority of the Roberts Court, statutory construction is more than a mechanical exercise. It is an effort to enforce basic democratic values that might be lost without judicial intervention. The implications of the Court's holding for American democracy are most clearly voiced in Justice Breyer's brief concurrence (which, curiously, is joined by all the justices in the majority except Justice Stevens):

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthen's the Nation's ability to determine – through democratic means – how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

In taking this approach, the opinion in Hamdan, like that in LULAC, could turn out to be a harbinger of the Roberts Court's approach to democracy. If these cases are any indication, the Court will likely be reluctant to intervene on constitutional grounds, even in cases where there is arguably a breakdown of the democratic processes that can ordinarily be relied upon to protect minorities. On the other hand, it is possible that the Court will resort to statutory interpretation – as it did in both Hamdan and LULAC – to achieve a similar end. Only time will tell, of course, but these two opinions are promising in their suggestion of a more thoughtful approach to statutory interpretation, one that takes into consideration the vital role of the federal judiciary in promoting fair democratic governance.