1

AALS Happy Hour — PrawfsBlawg, ConcurringOpinions, and American Society of Comparative Law

For those of you who will be at AALS this year, we plan to continue the tradition of having a joint Prawfs Concurring Opinions happy hour.  This year we will be joined by the Younger Comparativists Committee of the American Society of Comparative Law.

The happy hour will be Saturday, January 3rd at 8 PM.  We will meet in the Stone’s Throw bar in the lobby of the Marriot Wardman Park Hotel.

This tradition was started and spearheaded by Dan Markel, one of the many ways he helped bring people together.  We want this, like so many of his contributions, to continue on.

Here is Paul Horwitz’s announcement at Prawfs, with some nice words about Dan.

So please drop by and join us!

 

5

National Party Platforms and the Constitution

I decided recently that I should read all of the major party platforms going back to 1840 to see what I would learn.  From time to time I will post about what I find.  (Though you can read them at this link if you are so inclined.)  Party platforms used to be very important and fairly concise, though today they are unimportant and full of blather.  The 2012 GOP Platform, for example, is 62 pages long and I doubt anybody bothered to read it.  I suppose the decline of party platforms can be traced to the disastrous 1968 Democratic National Convention, though I am not sure if that hypothesis is correct.

What have I learned so far?

1.  Puerto Rican statehood used to be mentioned often in the platforms of the two parties.  Why this stopped is unclear to me.

2.  The ante-bellum Democratic platforms repeated (until 1856) President Jackson’s position that the Bank of the United States was unconstitutional, and also referred every time to the Alien and Sedition Acts as an example of an unjust law.  I thought the latter point was notable since this continued long after 1800.

3.  The first reference to the Bill of Rights came in the 1936 Republican platform.

More later.

2

The Crystal Ball for 2015

In thinking about national politics for the upcoming year, the Supreme Court is the wildcard.  What will we be talking about during the first half of the year?  The usual suspects probably–taxes, immigration, foreign policy, climate change, etc.  If King v. Burwell goes against the Administration, though, we will be talking about nothing but health care in the second half of the year.  We will have no choice, as Congress and most of the states will have to come up with a response to the loss of subsidies for millions of people.  If King goes the other way, though, then we won’t be talking about health care much at all.

I haven’t a clue as to what the Court will do in King.  Oral argument in March will either be very anticlimactic or thrilling–stay tuned.

Posner
7

The Promethean Posner – An Interview with the Judge’s Biographer

When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. Richard Posner (1990)

This is the eleventh and next-to-last  installment in the Posner on Posner series.

William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.  

Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:

  1. Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book) 
  2. Federal Judges Revealed (Oxford University Press, 2009)
  3. The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
  4. In the Opinion of the Court (University of Illinois Press, 1996)

Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”

William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)

Note: Some of the links below will open in Firefox or Chrome but not in Safari.

Question: How did you first come to know Richard Posner?

William Domnarski

William Domnarski

Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.

Question: You have written about Judge Posner before. Tell our readers a little bit about that.

Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.

It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. William Domnarski (1996)

Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?

Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.

Question: How long will your biography be?

Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.

Question: When is it scheduled for publication?

Domnarski: It should be available sometime during the Spring-Summer of 2015.

Question: What kind of response did you get from the people you were able to interview?

Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.

Question: Did you interview any sitting Justices?

Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.

Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?

Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]

Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?

Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.

Publisher’s Blurb

Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. 

THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY

Question: What was the biggest challenge in doing this biography?

Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.

Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.

Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?

Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.

The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.

The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.

Question:

  1. Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
  1. How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?

Domnarski:

  1. It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
  1. I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.

Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?

Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.

There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)

THE “BRASH YOUNG MAN” Read More

0

3D Printing Helps Yale Student Create Beer Bottle Pipe Organ?

Apparently, a Yale student has used 3D printing to create a beer bottle keyboard. Blowing across the top of a bottle to create sounds it not new. This student created a keyboard “of 12 beer bottles, which are set up in 2 rows, one consisting of 7 bottles and the other 5.” But when tried the get compressed air to make the same sound as a human mouth, the outcome failed. He needed a way to mimic a mouth. He “took several pictures of himself blowing air into the bottles. He then used SolidWorks to model the opening for each ‘mouthpiece’. Once modeled he used an Stratasys Objet 30Pro 3D printer to print out 12 of these nozzle attachments. The problem was solved!” Cool idea, difficult problem, yet now able to solve on your own: this 3D moment is fun example of the way the technology is opening up more creation and shifting the ability not only to design a solution but make one at a local or individual level.

I wonder how many cool new things will emerge in six to twelve months from now after all 3D printers for the holidays gifts are opened and played with. We’ll see. Whether these inventors will also file more patents on things like this students mouthpiece will also be interesting. For now, I’m happy to see fun, odd stuff being created.

1

CIV!!! Or How Simulations May Help Government and Personal Choices

Could Civilization and the SIMs be part of a better informed future? I loved Civilization and played way too many hours of it in college. Turns out that the Colombian government has developed “computer games which are designed to teach pre-teenagers to make sensible choices about everything from nutrition to gang membership.” I wonder whether running a simulation of choices and outcomes over and over would shape behaviors or teach other gaming instincts. For example, most people might find that if they follow certain paths they end up in safe, but relatively happy middle class life and retirement. Heck, the game, Life, was a truly random version of what growing up is (then again maybe everything is so stochastic that Life is correct to rely on the spin of a wheel to see whether one is a doctor or teacher or has kids). Still, a game that reinforced the experience of putting money away now, not having it to play with, but having savings in retirement, i.e., the tradeoffs were more palpable, might sensitize people to choices. I never played SIMs, only Sim City, but if SIMs lets you smoke, take drugs, drink too much, have unsafe sex, etc. and gain near term rewards but then find that the long-term payoffs were poor, that would be interesting. Of course, some outcomes might be you’re a superstar who dies early or worse ends up on a horrid reality show. And, many may say “I was a wild child, had a blast, and ended up on T.V.? Cool!”

1

Walmart versus Apple aka Revenue versus Profit

Which business would you want to be? The Economist Espresso reports that Walmart takes “about 65 seconds to collect $1m in revenue,” but Apple needs “very nearly three minutes.” Looks like Walmart is where the money is. And it is, but when it comes to profit, “Apple, with its high margins, is fastest in the profit stakes: chalking up $1m takes it less than 13 minutes and 20 seconds, whereas Walmart needs more than half an hour.” Looking at the chart, Apple and Google have good profit margins but banks like JPMorgan Chase and Goldman Sachs do even better (all above 20%). Coke (17.4) and Pepsi (10.4) are quite good too. So how much does the law affect these sectors and which the best to be in? Hard to tell.

No matter what, any regulation be it about disclosures about practices or nutrition or oversight or safety or labor or where a good is made or liability for property rights or ability to weather an economic downturn, can shape a sector. Given the high profits in some of these sectors, you will see some arguing that they are getting away with too much and others saying that any regulation will kill the sector. Both positions are likely incorrect. That said, watching where new money, new offices (for old and new ventures), and start ups go may tell us something about where people believe they can do well.

One thing I am thinking about is how much state-by-state regulations and barriers to labor mobility influence business decisions. Although work on intellectual capital and noncompetes is quite strong that lower restrictions help business overall, alleged protection of voting systems and other entry barriers matter too. Someone may have studied this point. If so, please share. But my guess is that a company that has trouble getting people (and I mean U.S. citizens) to their headquarters won’t be happy about that cost.

2

Secession in Maine

Lately I’ve become interested in the secession of Maine from Massachusetts.  Maine was a part of Massachusetts until 1820, and became “independent” following a referendum authorized by the Massachusetts legislature.  Why did Maine vote yes?  One factor was that during the War of 1812 Maine suffered at the hands of the British while “Massachusetts South” did little to protect their northern region.  Maine was also geographically distinct and Jeffersonian in its politics, in contrast to the Federalists in Boston.

Here is why I find this story interesting.  There was nothing in the Massachusetts Constitution about secession.  Nevertheless, people evidently felt that secession was constitutional so long as the mother country and the breakaway region agreed to separation.  Some other early examples of this include Kentucky and Tennessee, which were formed from lands from Virginia and some of the other original 13 states.  It’s somewhat surprising that these cases were not raised when the South attempted to unilaterally secede from the Union.

Another notable point in Maine’s secession was the use of a referendum to make the choice.  Though the Framers were famously skeptical of direct democracy in creating our Republic, states used direct democracy long before Progressives introduced the initiative as a regular feature in many states.  Rhode Island held a referendum to decide whether to hold a ratifying convention for the Constitution (the first vote was no), and Maine voted to leave Massachusetts in a similar process.

In case this is my last post until 2015, Happy New Year to CoOp Nation.  I look forward to more frequent blogging when my paternity leave ends in January.

Posner
2

Posner on Case Workloads & Making Judges Work Harder

What’s the evidence in this case that the [administrative] judges can’t work harder and handle 500 cases?Richard Posner (2014)

I shall not inquire why Congress as it were “permits” judges not to work too hard, by increasing the number of judges and their staffs in order to meet increases in workload. . . .

Any effort by one judge to hear more than his proportional share of cases or snag more than his proportional share of writing assignments is not only rebuffed but resented. For one thing, it might result in Congress’s deciding that a smaller number of judges could handle the federal judicial workload.Richard Posner, “What do Judges Maximize?

This is the tenth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, the eighth here, and the ninth one here.

Almost two decades ago, in a book titled The Federal Courts: Challenge and Reform (1985). Both his analysis of the problems facing federal courts and his calls for reform drew criticism from some members of the federal bench. See e.g. Judge Roger J. Miner’s 1997 review essay. Judge Posner was also a member of The Federal Courts Study Committee (1990).

Three years ago Judge Posner offered the following comment on the workload of the Supreme Court Justices:

“If you look hard enough [on the Court’s official website], you will find a paragraph implying misleadingly that the Court has a very heavy workload; in fact, in the last half-century its output has fallen, while its staff (consisting mainly of law clerks) has increased substantially, both in quantity and—because, since the late 1960s, a prior clerkship has become de rigueur for Supreme Court law clerks—in experience.”

Against that general backdrop, I thought it might be informative to consider a recent case that came before Judge Posner on the topic of case workloads. Earlier this month, on December 9th, a panel of the Seventh Circuit heard oral arguments in Association of Administrative Law Judges v. Colvin.

The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.

Below are some excerpts from an exchange during oral arguments in the Colvin case. The other two judges on the panel were Michael Kanne and Kenneth Ripple. Given the focus of this series, however, I quoted only Judge Posner’s questions and comments. The comments I have transcribed, though directed at administrative law judges, provide the reader with a general idea of the nature of some of Judge Posner’s concerns.   

One final comment: If Judge Posner expects a lot of work from his fellow judges, both administrative law and Article III jurists, it may have something to do with his own (pardon the expression) Calvinist-like work ethic.

______________

Marilyn Zahm: . . . This case is about judicial integrity and the integrity of the entire administrative judicial system. It is a case about a quota that directs judges to issue favorable decisions or cut corners, denying claimants due process and fair adjudication of their cases. It is not a case about working conditions. . . . Administrative law judges have to have judicial independence . . . .

Judge Posner: I don’t see how this affects judicial independence.

Ms. Zahm: The quota directs that the judge issue favorable decisions or cut corners.

Judge Posner: No, no, that’s not a proper definition. The quota says you’re supposed to do what? — 500 to 700 cases a year?

Ms. Zahm: The quota says we have a minimum of 500 cases.

Judge Posner: Five hundred cases a year. Now how does having to do 500 instead of 400, or whatever people do, how does that interfere with your adjudicative independence?

Ms. Zahm: Because paying cases is faster, and it’s easier because those cases are not appealed. The government is not represented in our courtroom, and very little scrutiny is given to cases that are paid. There are no studies showing that a judge can properly adjudicate a minimum of 500 cases a year and still comply with the requirements of the APA, and all of the rules, regulations, and law of the Social Security Act. In fact, the agency asserts that it should take us two-and-a-half-hours to adjudicate a case. That includes: opening the file, reading all of the voluminous records – most of which are medical records – holding a full and fair hearing, developing the record, ensuring that all of the evidence . . .

[The Need to Work Harder]

Judge Posner: Well, you’re saying that to do a good job, they’ll have to work harder.

Ms. Zahm: I don’t think it’s a question of working harder.

Judge Posner: Why not? If they work harder, they can do what their doing now. Right?

Ms. Zahm: No, because it takes a certain amount of time to do the work. . . .

6a00d8341bf74053ef00e54f6ef40d8833-800wiJudge Posner: But judicial workloads, for example, vary across districts, and circuits and so on. Some courts have heavier workloads, so the judges have to work harder. Is that an interference with judicial independence?

Ms. Zahm: If by working harder we could accomplish the 500 case minimum, we would not be here. It’s not a question of working harder. The work takes a certain amount of time . . .

Judge Posner: Why do you think they [the SSA has] done this?

Ms. Zahm: It’s political expediency.

Judge Posner: How do you mean?

Ms. Zahm: That, they have a certain amount of cases that have to be moved through the system, and therefore the judges are just going to move them through the system.

Judge Posner: Well, that sounds like a pretty good reason. Right?

Ms. Zahm: Not if it perverts the administrative . . . .

Judge Posner: But it only perverts it if the judges refuse to work harder.

Ms. Zahm: Again, Judge Posner, I don’t mean to disagree, but it’s not a question of working harder. If I worked harder . . .

Judge Posner: How do you know? How do we know? What’s the evidence of that?

Ms. Zahm: Well, you see the cases that we handle coming through your courtroom.

Judge Posner: What’s the evidence in this case that the judges can’t work harder and handle 500 cases?

Ms. Zahm: We are prepared to show at trial that this is not a case of requiring judges to work harder but perverting . . . .

Judge Posner: Well, how many cases did they handle before this rule?

Ms. Zahm: I think that varied . . .

Judge Posner: No, answer my question.

Ms. Zahm: . . . The average judge would probably handle between 300 and 500 cases prior to this.

Judge Posner: That sounds like an average of 400. So, what’s the evidence that if you increased their caseload by 25%, they can’t handle that increase?

[Rubber-stamping cases?]

Ms. Zahm: Well, I could handle 1oo cases a day if all I did is rubber-stamped them. It’s not a question of handling the cases. It’s a question of performing your statutory obligations of giving the claimant due process, of reading the entire record, of developing the case. And if you don’t do that the outcome is affected. Either you will pay the case . . . or you give the claimant short shrift. That’s not a judicial system that has any integrity.

Judge Posner: No, my question is more specific: Suppose the average administrative law judge handles 400 cases a year. How difficult is it for him to handle 500?

Ms. Zahm: I can speak from my own experience, because when I was a fulltime judge I did close to 400 cases a year. I was pushing it to do that many.

Posner’s Productivity – 90 opinions annually

[T]he Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year. [Source here]

Judge Posner: So why doesn’t the agency hire more administrative law judges?

Ms. Zahm: Because Congress in the past has given the agency less money than it needs to accomplish its mission. The agency is in the process of hiring more judges. The problem is that there are more cases than ever. . . .

[Question from Judge Ripple re whether there was a “working condition” subject to the CSRA and response by Ms. Zahm]

[The 10-hour day hypothetical] Read More

2

On Second Thought . . .

In this season of forgiveness, I come to confess error.  A few months ago, I wrote some posts arguing that the procedure for drawing congressional districts in Arizona is constitutional.  After working through the materials, though, I have changed my mind and now think that the Supreme Court should (probably) reverse in Arizona Legislature v. Arizona Legislative Redistricting Commission, assuming that the Court reaches the merits.

The dispute (in case you don’t remember) involves Arizona’s adoption of a state constitutional amendment that vests redistricting power in the hands of an independent commission rather than the state legislature.  The Legislature sued claiming that Article One, Section Four, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .” precludes a state constitution from removing that power from the Legislature.  The Court’s precedents in this area hold that “the Legislature” in this context refers to the ordinary lawmaking process under a state constitution, which can involve a Governor’s veto or a referendum that overrides the Legislature’s proposed redistricting.  Proponents of the Arizona plan want to take this a step further to say that whatever the state constitution provides for redistricting satisfies the Federal Constitution so long as the Legislature has some role, which it does under the Arizona plan.

Why did I think the Arizona process was valid?  First, I said that to hold otherwise would leave the voters of a state with no remedy for partisan gerrymandering.  If their only recourse was to go to the Legislature that was the source of the problem, then that was no recourse.  I now see, though, that this answer was too simplistic.  A state could adopt a constitutional provision that says “congressional districts may not be drawn to favor one party over the other” or the equivalent language.  This would leave the districting in the hands of the Legislature as Article I requires, but would limit that authority in a way that can satisfy concerns about partisan gerrymanders.

The second thought that occurred to me after I wrote my posts is that the Court’s precedents under Article I, Section 4 essentially say that congressional districting should be treated just like any other state legislation.  Arizona, though, is not doing this.  It created a special process without the consent of the Legislature for drawing districts.  In that sense, the procedure before the Court really is unprecedented and stands on shaky ground.

The final point that occurred to me belatedly is that proponents are essentially arguing that “the Legislature” in Article One should be read as “legislative authority.”  Legislative authority could be conferred upon anyone by a state constitution, so then whatever the state constitution says on that score goes.  But there’s a problem with this logic.  In Article Four, Section Two, the Constitution uses the term “executive authority of the State” to describe the extradition of alleged criminals.  Thus, the Framers could have said “legislative authority,” in Article One, Section Four, but they instead chose the more specific term “the Legislature.”  I think that weighs in favor of the constitutional challenge.

While these three factors have (tentatively) changed my view on how the merits of the case should be addressed, one significant counterargument remains.  Article One, Section Four lets Congress override a state’s process for drawing congressional districts.  Accordingly, one could say that there is no judicial remedy for a state’s violation of that same provision–only Congress can act.  As Pauline Maier explained in her book on the ratification of the Constitution, folks paid a lot of attention to Article One, Section Four in 1787-1788.  This history needs to be examined more thoroughly to see whether disputes over whether “the Legislature” has acted should be deemed a political question.