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Old 05-12-2020, 02:24 PM
Hari Seldon is offline
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Was Frankfurter right (that the court should stay out of politics)?


Until the 1960s, SCOTUS avoided political questions. The biggest ones they ducked was over malapportionment in states. The constitution on my home state, PA, required reapportionment of the legislature after each census. The last time they actually did was in 1901. Since then there had been an enormous population shift from rural areas to Philadelphia and Pittsburgh, but this was not reflected in either house of the legislature. Frankfurter and other members of the court decided that this was a "political" and not judicial question and that if urban voters didn't like the way the legislature was apportioned, they had only take it over and fix. I'm sure the justices were aware of the impossibility of that actually happening, but they just didn't want to get involved. Some time in the mid 60s, the Warren court overturned this decision with their one-man one-vote decision. I was certainly happy to see it at the time.

Now fast forward to 2000. The court has embraced political questions to the point that they actually decided an election. And now it has come to the point that we have a thread about Trump's tax returns and the prevailing opinion is that of course the Republicans on the court will say no he doesn't have to and even NY State cannot investigate a sitting Republican president. It is now widely believed--I certainly believe it--that the court will automatically side with the Republican party on any partisan issue. Maybe after a number of Democratic presidents, we could the opposite situation, which is no healthier. The court has lost all claims to being an impartial judiciary.

Was Frankfurter right?
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Old 05-12-2020, 03:14 PM
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How do you define a "political" question?

Does that mean that a law that makes it much more difficult for black people to vote than for white people is beyond judicial review (eg a law that states all voting places shall be in areas with a majority white population)? After all, voting is at the heart of the political process, so that would surely qualify as a political question. If black people don't like that result, they just have to organise politically to get the law repealed?
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Old 05-12-2020, 03:41 PM
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If the Supreme Court wants to avoid having to make political decisions, it has a duty to ensure that the people can make political decisions. That means if a group is being denied equal access to the ballots, the Supreme Court must step in.
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Old 05-12-2020, 06:30 PM
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There is a really fun podcast on this case that is well worth a listen: Radiolab Presents: More Perfect - The Political Thicket

It is a really dramatic case that ultimately destroyed two Supreme Court justices (pretty much literally).

That said, my opinion is Justice Frankfurter is full of shit and I am amazed that Justice Douglas struggled so hard with this.

"Political question" my foot. That is a self-imposed rule. And it may even be a good guideline but only ever a guideline.

The branches of government are co-equal. They were designed with a balance of power in mind, each being a check on the other.

The issue at hand in Baker v. Carr was a redistricting case gone incredibly wrong. Frankfurter's opinion that this needed to be solved at the ballot box was bullshit since the state was skewing results so heavily with their woefully out-of-date district maps that no one could change the status quo at the ballot box.

If ever there was a time for the court to step in and say this was profoundly broken this case was it.
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Last edited by Whack-a-Mole; 05-12-2020 at 06:34 PM.
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Old 05-12-2020, 06:46 PM
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Originally Posted by Hari Seldon View Post
Now fast forward to 2000. The court has embraced political questions to the point that they actually decided an election. And now it has come to the point that we have a thread about Trump's tax returns and the prevailing opinion is that of course the Republicans on the court will say no he doesn't have to and even NY State cannot investigate a sitting Republican president. It is now widely believed--I certainly believe it--that the court will automatically side with the Republican party on any partisan issue. Maybe after a number of Democratic presidents, we could the opposite situation, which is no healthier. The court has lost all claims to being an impartial judiciary.

Was Frankfurter right?
I will add that I see nothing here that suggests Baker v. Carr opened the door to this mess.

Did the Supreme Court have to step in when it did in Bush v. Gore? Nope.

Is this the first time the court has been distinctly partisan? Nope (IIRC the Supreme Court was distinctly hostile to Abraham Lincoln).

Is what this court doing forgivable? Nope.

I will say, if they give the president complete immunity (something previous courts rejected) they need to consider there will be a president they don't like coming next who they have handed carte blanche powers to.

Whatever you want to say about the justices they are not stupid people. Do they want more of Trump? If not Trump do they want to hand such complete immunity to Biden if he beats Trump?

I cannot see them being keen on either count so I would be surprised if they shield Trump on this one.
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Last edited by Whack-a-Mole; 05-12-2020 at 06:51 PM.
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Old 05-13-2020, 02:49 AM
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Originally Posted by Northern Piper View Post
How do you define a "political" question?

Does that mean that a law that makes it much more difficult for black people to vote than for white people is beyond judicial review (eg a law that states all voting places shall be in areas with a majority white population)? After all, voting is at the heart of the political process, so that would surely qualify as a political question. If black people don't like that result, they just have to organise politically to get the law repealed?
Such a thing would likely be within the province of Congress to change under the Fifteenth Amendment if it was done solely as a means to keep blacks from voting.

I just don't see how a state cannot choose to allocate votes for one house of its legislature like the U.S. Senate does. Agree or disagree, there is an argument for saying that if we just go by straight population, then our rural counties' voices will be drown out and we want a house that hears their concerns.

And the OP is correct. These Warren Court decisions provided the basis for Bush v. Gore. These cases started the fiction of a "fundamental right to vote" when throughout history states and Parliament put many, many restrictions on the franchise. Later Constitutional amendments didn't change that, they just said that states could not use race, sex, failure to pay a poll tax, or age if over 18 as categories to deny the vote.

Although I may not agree with it, a property qualification makes logical sense. You get the votes of people who have invested in staying in the community instead of college kids renting dorm rooms for 9 months out of the year. I can understand a community that wants it long term course charted by its residents and not an ever changing group of college kids voting for the latest trend and then leaving town.
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Old 05-13-2020, 05:11 AM
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I just don't see how a state cannot choose to allocate votes for one house of its legislature like the U.S. Senate does.
They can. That's just not what states were doing. It only seems the same if you treat states as federal unions of counties, which they aren't. What states were doing before Baker v. Carr would be like if there was a house of Congress that gave equal representation to, say, each National Park Service region, or some other purely-administrative division that existed at the mere whim of Congress.

Since states have no federal structure, but are single unitary sovereigns, the equivalent of the US Senate would be a legislative chamber where there were no districts, and every member was elected by the whole state. That's still allowed (Illinois did it temporarily in the 1960s, I think). There would probably be race-discrimination issues with doing it as a winner-take-all bloc election, but there are lots of election methods. Alas, none of the 49 bicameral states have shown any interest in doing anything interesting with their legislatures since Baker v. Carr. They're all just trudging along with boring old districts and two houses that work the exact same way. Some laboratories of democracy, huh?

Last edited by Lord Feldon; 05-13-2020 at 05:16 AM.
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Old 05-13-2020, 06:28 AM
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Quote:
Originally Posted by Northern Piper View Post
How do you define a "political" question?

Does that mean that a law that makes it much more difficult for black people to vote than for white people is beyond judicial review (eg a law that states all voting places shall be in areas with a majority white population)? After all, voting is at the heart of the political process, so that would surely qualify as a political question. If black people don't like that result, they just have to organise politically to get the law repealed?
The term "political question" is a term of art in the law and is not just a matter before a court that has political implications. It is almost as old as the Supreme Court itself, having been raised in Marbury v Madison.

Quote:
Originally Posted by Chief Justice John Marshall in Marbury v Madison
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.
Under the "political question" doctrine courts have decided that certain disputes between the various branches of government might be beyond court review. This is particularly so where the other coordinate and co-equal branches have a means to check one another's authority or where particular power is specifically vested in one particular branch of government.

In 1993 federal judge Walter Nixon was impeached for perjury and removed from office upon conviction by the Senate. Nixon filed suit challenging the impeachment arguing that the full Senate did not hear evidentiary evidence, only a committee did. In Nixon v United States the US Supreme Court ruled that courts do not have the power to tell the Senate how to run an impeachment trial - that the issue was a "political question" beyond court review as the Constitution specifically delegates the power to try impeachments to the Senate.


Whether the legislative branch can demand production of documents and/or testimony of the executive branch is one area which the courts might decide they are going to step out of the line of fire and let the other branches duke it out. If the legislature does not like it they have recourse and can cut off funding or impeach. If the executive does not like the legislature's actions it can veto legislation.
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Old 05-13-2020, 07:15 AM
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Just for the record, Bush v Gore and the earlier Bush v Palm Beach County Canvassing board specifically were about federal law questions and in the case of the later (Bush v Palm Beach was a pretty clearly ultra vires action on behalf of the Court below.
The controversy in Bush v Gore related to the remedy rather than a review of error below, which was a 7-2 decision.

Kennedy and Souter JJ have since stated that they found it unseemly that the Presidential election should be decided by a state judge. One law tutor of mine, who was a SCOTUS law clerk at the time has expressed a view that all of the Justices felt that way, regardless of their actual rulings in the case.
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Old 05-13-2020, 07:20 AM
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Originally Posted by Hari Seldon View Post
... It is now widely believed--I certainly believe it--that the court will automatically side with the Republican party on any partisan issue. ... The court has lost all claims to being an impartial judiciary.
To be fair, recall the 4-4-1 vote where Chief "Justice" John Roberts, who earned his bones as a hack in the Reagan Dept. of "Justice" concocting new ways to suppress Democratic votes, joined with the four human Justices to prevent the complete repeal of Obamacare. (Of course this was a case where Roberts was defending his masters from themselves stripping health care from millions of white Americans would have cost the GOP elections.)
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Old 05-13-2020, 07:30 AM
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As to the rest, political question doctrine is related to the old English rule about policy decisions being unreviewable, the Courts only being concerned with the question of whether a certain decision or action was within the powers of the person making them. Thats an idea older than the United States, it was stated in Dr Bonhoms case and the Case of Proclamations for instance, both issued in the 1610's.

Of course the line between the two is not totally clear.

ETA: While extraneous considerations may have affected Robert's decision in the Obamacare cases, they almost certainly were about maintaining the Courts standing and independence, rather than GOP electoral chances.

Last edited by AK84; 05-13-2020 at 07:32 AM.
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Old 05-13-2020, 07:31 PM
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To be fair, recall the 4-4-1 vote where Chief "Justice" John Roberts, who earned his bones as a hack in the Reagan Dept. of "Justice" concocting new ways to suppress Democratic votes, joined with the four human Justices to prevent the complete repeal of Obamacare. (Of course this was a case where Roberts was defending his masters from themselves stripping health care from millions of white Americans would have cost the GOP elections.)
Yes, but notice that the new case in which they are almost certainly going to overturn ACA, but not till after the election. They will almost certainly boot the case of Trump's taxes and financial records till after the election. They have become the tool of the Republican party.

The reason I started this thread was that I was wondering if all this partisanship on the part of the court started with the districting case. I guess you cannot have it both ways. Once the court gets into the political thicket it is political.

Court packing is in such bad odor that I doubt that either party will try it. But you never know.

Someone upthread mentioned the situation in IL in the 60s. As it happens I was living in IL at the time and voted in that election. The state legislature could not produce an acceptable redistricting after that decision. So they had an at-large election for the lower house. That house had 177 members and each party put up 118 candidates and most people simply voted a straight ticket D or R. I did. But you could go down the list and remove an x from one candidate and put it on the other side. So all 118 Ds and 59 Rs were elected. Which 59 Rs? The ones who had the most D friends and relations who could be persuaded to split their tickets to vote for them. Needless to say, it was a travesty and the new legislature quickly found a redistricting plan.
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Old 05-13-2020, 08:58 PM
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Originally Posted by Lord Feldon View Post
They can. That's just not what states were doing. It only seems the same if you treat states as federal unions of counties, which they aren't. What states were doing before Baker v. Carr would be like if there was a house of Congress that gave equal representation to, say, each National Park Service region, or some other purely-administrative division that existed at the mere whim of Congress.

Since states have no federal structure, but are single unitary sovereigns, the equivalent of the US Senate would be a legislative chamber where there were no districts, and every member was elected by the whole state. That's still allowed (Illinois did it temporarily in the 1960s, I think). There would probably be race-discrimination issues with doing it as a winner-take-all bloc election, but there are lots of election methods. Alas, none of the 49 bicameral states have shown any interest in doing anything interesting with their legislatures since Baker v. Carr. They're all just trudging along with boring old districts and two houses that work the exact same way. Some laboratories of democracy, huh?
Reynolds v. Sims specifically disallows states to allocate any house of their legislatures by wait of a county or unit system similar to the U.S. Senate. This is based on, IMHO, an incorrect view of the Fourteenth Amendment.

Quote:
Originally Posted by AK84 View Post
Just for the record, Bush v Gore and the earlier Bush v Palm Beach County Canvassing board specifically were about federal law questions and in the case of the later (Bush v Palm Beach was a pretty clearly ultra vires action on behalf of the Court below.
The controversy in Bush v Gore related to the remedy rather than a review of error below, which was a 7-2 decision.

Kennedy and Souter JJ have since stated that they found it unseemly that the Presidential election should be decided by a state judge. One law tutor of mine, who was a SCOTUS law clerk at the time has expressed a view that all of the Justices felt that way, regardless of their actual rulings in the case.
Quote:
Originally Posted by Bush v. Gore
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964).
So yes, it was primarily the construction of the "Safe Harbor" federal statute, the Court then determined that: 1) The Florida Legislature had shown an intent to comply with the safe harbor statute by providing a popular vote for President, and 2) when construing that intent, the Florida Supreme Court must provide the safeguards given in the earlier "right to vote" cases cited.

The vote was 7-2 that the contest provisions it provided for did not. However, the vote was 5-4 that said that there was no time for a better remedy, while two of those seven would have allowed them more time.

The point is, were it not for the earlier right to vote cases, the analysis would have been: Did Florida violate the right to vote because of race, sex, failure to pay a poll tax, or age if over 18? If the answer is no, then the way Florida conducts its elections is a state matter and we leave it to FL courts to decide.
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Old 05-14-2020, 12:11 AM
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Reynolds v. Sims specifically disallows states to allocate any house of their legislatures by wait of a county or unit system similar to the U.S. Senate.
I know what the ruling did. Your assertion that a county-based system would be "similar to the U.S. Senate" is what I disagree with. Counties and "units" are not states, they are administrative entities set up at the mere whim of a state and subject to dissolution at will. The US Senate does not represent administrative entities (such as National Park districts or Federal Reserve regions or USDA agricultural statistical areas), it represents sovereign states. States happen to be made up of just one sovereign state each (themselves), so a Senate-equivalent would have just one statewide district.

Last edited by Lord Feldon; 05-14-2020 at 12:14 AM.
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Old 05-14-2020, 12:56 AM
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I know what the ruling did. Your assertion that a county-based system would be "similar to the U.S. Senate" is what I disagree with. Counties and "units" are not states, they are administrative entities set up at the mere whim of a state and subject to dissolution at will. The US Senate does not represent administrative entities (such as National Park districts or Federal Reserve regions or USDA agricultural statistical areas), it represents sovereign states. States happen to be made up of just one sovereign state each (themselves), so a Senate-equivalent would have just one statewide district.
Possibly, but prior to the voting rights cases, states could set up their legislatures how ever they wanted, subject only to the "republican form of government" clause which was likewise held by the Court to be a political question.

So while I agree with you that subdivisions of states are not the equivalent to a state's relationship to the federal government, the voting rights cases give no principled basis why the states cannot allocate votes in that manner.

The Fourteenth Amendment? It specifically allowed states to even discriminate based upon race and sex with regards to voting! That's why the 15th and 19th were passed. It is unprincipled to say that the Fourteenth required a certain system of government.

Last edited by UltraVires; 05-14-2020 at 12:57 AM.
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