"A Future Justice Kavanaugh and Executive Privilege"

Over at Law and Liberty, I have a piece on Judge Brett Kavanaugh and his views on executive privilege. It's titled A Future Justice Kavanaugh and Executive Privilege. From the opening:

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

Quick thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky

Here are a few quick running thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky. This post will be updated. The transcript PDF is here. (As an I aside, I wrote an article about the concept of "ballot speech," or the contents of the ballot itself as communicating expressive and informative content for voters, in this piece in the Arizona Law Review. Mansky involves a related question on restrictions on speech in the polling place.)

Express advocacy? Justice Kagan early in the argument, along with Justice Kennedy, wondered about more narrowly-drawn rules on matters like express advocacy for or against a particular candidate rather than broader political messages. That might be an attractive option for a Court looking to fashion a rule that offers the state some flexibility to regulate in the future.

Content and overbreadth: Justice Alito later pressed on this issue to wonder if candidate-based content might be somehow a separate matter properly subject to regulation. Justice Kagan in particular was concerned about how a proper overbreadth challenge might look. Justice Gorsuch later in the argument wondered about Minnesota acting as "outlier" when examining whether Minnesota had a compelling interest to justify the potential (as he said, "often undocumented") chilling effect.

Scope of intimidation: Chief Justice Roberts wondered about this notion of "decorum" in the polling place, emphasizing that freedom from intimidation is a distinct issue. At the same time, he wondered, "maybe bitter, sharp, political campaign going on, and maybe, just before you cast your vote, you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display." Later Justice Kennedy wondered about the difficulty of enforcing decorum if it largely turned on individualized determinations from polling officials.

Late in the oral argument, Justice Kagan wondered about how to evaluate "decorum." The courtroom was a good place for decorum, she thought. But she wondered why the polling place sounded "a little bit church-like," when it came at the end of "often a rowdy political process."

First Amendment issues at all? Justice Kennedy wondered, "Why should there be speech inside the election booth at all, or inside the what you call the election room?" From a justice usually known for his robust First Amendment views, this struck me as notable. Justice Ginsburg jump in to join the concern.

Facial challenge: One related question to the overbreadth concern was the scope of the challenge, as a facial challenge as opposed to as-applied. The Court's doctrine in this area has not been the most coherent, so I won't dig into issues now. But Chief Justice Roberts wondered about the "tiniest little logo" as being subject to the law and somehow affecting "decorum" as potentially a problem.

Arbitrary enforcement and defining political matters: Justice Alito wondered about the risk of arbitrary enforcement and the difficulty of election officials line-drawing in the application of this statute. In a series of hypotheticals testing this limit, Justice Alito got the state's attorney to say that a T-shirt with "the text of the Second Amendment' Could be viewed as political, but notthe text of the First Amendment. (Oral arg. transcript at 40.) It highlighted a very basic problem with a statute that had as broad a scope as Minnesota suggested--and perhaps suggests that the Court would require something narrower.

Justice Alito later worried about partisan election judges determining the political connotations of materials. The state's response? This is not terrible unusual, given that election judges make all kinds of determinations.

Burson: The Court showed no interest in overruling Burson. (But such things may remain unsaid....) Late in the oral argument, Justice Gorsuch seemed satisfied that Burson would be the narrower case of "campaign speech," compared to Minnesota's law of "additional political speech." But, returning to the definitional concerns of the Court noted earlier, that may not be satisfactory.

Compelling interests: Near the end, Chief Justice Roberts emphasized that it did not appear that the state's interest were "terribly strong." Only time will tell....

Quick thoughts from today's oral argument in Gill v. Whitford

This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.

Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.

Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.

Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.

First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.

Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.

Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.

Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.

Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."

Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."

The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."

Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)

Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."

Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.

Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....

Would Jesus oppose partisan gerrymandering?

The title may be slightly glib, but a biblical allusion caught my attention as I was reading the briefs in Gill v. Whitford, the partisan gerrymandering case before the Supreme Court. The reference appeared in the amicus brief of Heather Gerken, Jonathan Katz, Gary King, Larry Sabato, and Sam Wang--an impressive lineup, to be sure! The biblical references occur in a passage about the ubiquity of the principle of symmetry:

While modern discrimination law is replete with examples of symmetry standards, the principle’s roots are ancient. One finds, for instance, examples in Judeo-Christian ethics, Genesis 13:8-9; Matthew 7:12. The notion of turning the tables is so powerful that it is a canon of literature, William Shakespeare, A Mid-Summer Night's Dream; William Shakespeare, Twelfth Night; Mark Twain, The Prince and the Pauper (1881), music, W.S. Gilbert & Arthur Sullivan, H.M.S. Pinafore (1878), and moral philosophy, John Rawls, A Theory of Justice 73-78 (rev. ed. 1999). This measure of fairness is deployed across cultures. See Cinderella Across Cultures (Martine Hennard Dutheil de la Rochère et al. eds. 2016); Heather K. Gerken, Second Order Diversit, 118 Harv. L. Rev. 1099, 1146 & n.124 (2005) (discussing Japanese tradition). Even children rely on the time-honored strategy of “I cut, you choose.”

So, no, the brief is not about whether Jesus would support or oppose partisan gerrymandering. Instead, it is a biblical allusion to the principle of symmetry.

Matthew 7:12 is the "Golden Rule": "So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets."

Unfortunately, I think this gets symmetry wrong--the Christian faith, rightly understood, including the Golden Rule, is quite asymmetrical.

Consider the Golden Rule itself: it is to do to others as you would wish they would do to you. There is no expected return from others. Indeed, there is a likelihood that others would not reciprocate. But there is no expectation of anything in return for those who adhere to the Golden Rule. The command from Jesus is to do without any expectation of anything in return. The Golden Rule can be misconstrued as anticipating or expecting some kind of mutual respect toward one another. It isn't that, as much as we might want everyone to respect one another. Instead, it is about the radical self-giving of the Christian to all others--giving, without expecting anything in return.

The brief offers the simple summary of symmetry: "Partisan symmetry is a deeply intuitive standard for measuring discrimination. It asks a simple question: what would happen if the tables were turned?" But, I think, the Gospels are replete with expectations for the Christian tradition of asymmetrical treatment and expectations.

From earlier in the Sermon on the Mount in Matthew 5, for instance, Jesus expressly rebukes a "turn the tables" standard: "You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you."

This, of course, doesn't mean that principle of governance can't be dictated by norms like symmetry. The brief is correct that symmetry has an extensive legal and non-legal tradition. (Indeed, the "eye for an eye" reference was omitted, surely a strong symmetrical standard!) And it might be that in establishing rules pertaining to representative government, symmetry is a sensible standard.

But, it is to suggest something slightly more modest. Biblical allusions can be a valuable device in making a persuasive argument. But precision of understanding biblical claims is, perhaps, just as important.

In which I confess I have little concern that an 8-member Supreme Court is asked to resolve a presidential election dispute

There have been many who've expressed great concern that an 8-member Supreme Court would be asked to resolve a dispute this presidential election, and that dividing 4-4 would be a nightmare. I confess, I have little concern for this scenario. Indeed, on Twitter, I went so far as to say "zero concern." I'd like to build on that here.

As a predicate, it's worth noting that I have a strong sense that courts should often refrain from entering the political thicket in election law matters. The contours of that can vary, of course. But I've written on disputes concerning Mary Landrieu's residency and Ted Cruz's eligibility; weighed in on Evan Bayh's residency and moves to pull Donald Trump's name from the ballot; and written academic commentary on judicial involvement in presidential and congressional elections, including the 2016 presidential election, and the redistricting process. Consistently, across these cases, regardless of partisan benefit, I've suggested judicial involvement is not preferred and the political process is better. I do not always think so, and the context of a case before the Court would affect my views, of course, but I have tended to prefer political solutions to judicial ones in election disputes, particularly in presidential elections, and even more particularly where there is some specific authority lodged in Congress to resolve such disputes (more on that soon).

First, the issue, I think, is more often a stalking horse for the pending nomination of Judge Merrick Garland to replace Justice Antonin Scalia. "#WeNeedNine" enthusiasts ardently claim the Senate should confirm the President's nominee. I make no claims regarding that process here--there are, of course, good reasons for the Senate to consider a president's nominee and ensure that the statutory number of seats on a court are filled. Instead, I simply examine the potential complications of an 8-member Supreme Court. (And while this line of argumentation is more a consequentialist claim, I find the stronger basis for argument to be more normative claims about the nomination process, advising and consenting, timing of judicial nominees in election years, and so on. More on the consequentialism claim--which I think is fairly low, anyway--in a bit. )

Second, even in the event of a 9-member Supreme Court, there are still risks of an 8-member Court tasked with hearing a dispute this presidential election--specifically, because Justice Ruth Bader Ginsburg made comments about Donald Trump and this presidential election that may invite a call for her to recuse in such a dispute. Indeed, an 8-member Court would make a recusal case easier, because it would then become a 7-member, and odd numbered, Court. But, again, given how little attention has been given to this component, it strikes me that concerns are, again, more as a stalking horse for another issue (i.e., the nomination of Judge Garland), rather than addressing concerns about what might happen in a disputed presidential election.

Third, Bush v. Gore was truly extraordinary, and unusual, for a presidential election. There's a kind of fascinated anticipation of an apocalyptic disaster that would lead to such a dispute recurring. But perhaps I'm simply more realistic about the odds of such a scenario recurring. I think the chances are exceedingly small--even if it's happened before, and even if this election is ostensibly close, and even if we have heard loud rhetorical cries of "rigged" elections that would inspire litigation.

In part, it's because there must be an election where sufficient electoral votes are in dispute because of a sufficiently close margin in those jurisdictions. When it's a single state, like Florida in 2000, that would be the tipping point of the election, and the margin of error is close enough to call for a recount, is the limited situation where such disputes are likely to arise. While New Mexico in 2000, in which Gore's margin of victory was 0.061%, was also quite close, flipping that state would be meaningless, and, therefore, why litigation was not a concern there. So part of the reason I have little--or zero--concern is because I do not believe the election will be particularly close in enough jurisdictions to matter. Of course, such predictions are sure to go wrong, but it's a reason my concern remains low.

Fourth, the legal claims would have to be of the type that would change the outcome of the election. Even a margin of 0.1% is a fairly fantastic deficit to overcome in even the most generous of recount regimes. It is almost impossible to win a recount in a close election simply because of the sheer volume of things that must cut the loser's way. Litigation may be likely, then, in a close election. But litigation that in any sense would likely succeed is even far less.

Fifth, even if there were a factual scenario along the lines of Bush v. Gore, of a tipping-point jurisdiction with a narrow margin of victory, lower courts, and parties, would know much more about what to anticipate ahead of that dispute. For instance, December 13 is the "safe harbor" date for states to submit their slates of electors with presumed regularity under the Electoral Count Act, a point that drew a great deal of attention in Bush v. Gore. Remedies would be geared with greater speed toward that date than in the past and alleviate the very late concerns.

Sixth, in the event the litigation began in state court, as it did in Bush v. Gore, and a state supreme court offered the final word on an issue in state, it's not immediately obvious that the Supreme Court would feel the need to weigh in. It's not clear that some of the more moderate member of the Court, or those with a longer view of the Court's institutional role, such as Chief Justice John Roberts, Justice Anthony Kennedy, or Justice Stephen Breyer, would advocate for hearing a petition from that state court. True, it happened in 2000. But it might be the case that they would simply leave the lower court judgment alone, regardless of the partisan impact, and, if other members of the Court acted in a more partisan fashion, then there would not be enough votes to grant certiorari.

Seventh, in the event a case came before the Court that failed to heed the lessons in previous litigation, it would assume that the Court would split in a 4-4 fashion along partisan lines (and assuming Justice Ginsburg does not recuse). While we deeply politicize all issues on the Court these days, especially when thinking about issues with overtly partisan outcomes, it's not obvious that the posture of the case would lend itself toward obvious partisan outcomes, and history shows that few cases are ever decided by an equally-divided court. So it is not obvious that even a consequentialist concern is sufficient to give rise of notable worry.

Eighth, even in the event the Court sends the case back by a 4-4 vote... what, exactly, is the harm? That a state supreme court or a federal appellate court has had the last word on a federal issue? They have had the last word on many such issues, even in many election cases. The fact that this is a presidential election somehow means that people expect, or long for, the Supreme Court to weigh in. But perhaps the narrative could differ, if only someone would advocate for a different narrative! That is--lower courts, and state courts, decide important issues all the time, and the Supreme Court does not frequently intervene in those disputes. That's okay, and, perhaps, good!

It is also complicated by the fact that, in all likelihood, the outcomes in 50 of the 51 jurisdictions sending electors to Congress, whereas this one last jurisdiction--and the tipping point jurisdiction--is in dispute. The fact that one state effectively decides the presidential election has great rhetorical impact. But it is, in reality, what has also independently happened in those many other less-controversial states that matters just as much. And it is really about this one state's resolution of its election--even if it has a national impact. Many election have a "national impact"--consider Al Franken's victory in Minnesota in 2008 after extensive litigation that ensured that Democrats would control 60 seats in the Senate, a filibuster-proof majority. That also had a "national impact," and the United States Supreme Court didn't weigh in. Yes, it's not the presidential election, but an element of analogy still stands.

Ninth, even if the lower court ruling stands, it is unlikely that a Supreme Court ruling from nine justices would actually affect the outcome. Recall, of course, that if the case is a close issue, there's, say, something in the neighborhood a 50% chance that the Court affirms the lower court. (And in the event it isn't a close issue, then it wouldn't even deadlock at 4-4, as raised in the seventh point above.)

Tenth, Congress is always in a position to ignore what the Court said anyway! Congress has power to count the electoral votes. It has provided for a mechanism to handle objections to the counting of electoral votes. Objections were raised in 2000 and 2004, and Congress sorted it out. Congress resolved disputed and competing slates of electors in 1960 most notably, but also at other times. And while some have suggested that the Electoral Count Act is unconstitutional, in the event it were ever challenged, everyone agrees that Congress has the power to count, and to develop the process for counting, electoral votes.

Reserving to Congress the power to resolve a disputed presidential election is emphatically the textual commitment of the Constitution. It lays out mechanisms for Congress to choose the president in the event no one secures a majority, most obviously. But in the event it is faced with competing slates of electors, or a question about the results, it is in a position to handle this process--perhaps it didn't handle it very well after 1876, and perhaps it wouldn't handle it after this year's election, but it is worth taking seriously Congress's role without devolving to the judiciary.

In sum, I recognize that there is, of course, the chance for a perfect storm--for a narrowly-contested election in a tipping-point jurisdiction (or jurisdictions) that leads to federally-disputed litigation demanding Supreme Court involvement, where the Court takes the case and is evenly divided by a 4-4 margin. But I have simply concluded that that chance is exceedingly small; and, in the event it occurs, is not terribly noteworthy given that lower courts are quite capable, the low likelihood a ninth justice would affect the outcome, and that Congress always retains the power to review the results regardless of judicial involvement.

I hardly consider myself a pollyanna--I anticipate litigation, of course, and heated rhetoric, and sore losers, and some series of apocalyptic claims of "rigged," "suppression," "fraud," "intimidation," and the like, whether right or wrong, over the next few days. But it's simply that, when I assess the contingencies I laid out above, I have little concern that an 8-member Supreme Court is asked to weigh in on a disputed presidential election.

Reaction to Evenwel v. Abbott: when the Court may be doing what it says it is not

Over at the George Washington Law Review Docket, I have an analysis of the Supreme Court's opinion in Evenwel v. Abbott. A portion of the analysis:

It did not face the question of whether Texas was permitted to use some other population basis. Indeed, the Court expressly stated that “we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.” But there are some signs that the Court’s logic may extend to what it disclaimed doing.
...

Perhaps this parsing of the opinion reads too much—it might be that this case does not stand for so bold a proposition. While the Court does not address precedent like Burns, it does not distinguish it or minimize it, either. Lower court opinions that had previously deferred on the question of the appropriate apportionment base were also cited without disapproval. And if we take the Court at its word, it has genuinely reserved the matter of whether states may use a non-population basis for drawing districts for another day.

But it is worth noting that the simple and unanimous decision of the Court may lead to the adoption of a narrower theory of “one person, one vote,” one that leaves less discretion to the states. Whether states (or localities) may exclude incarcerated prisoners, non-citizens, or non-voters, among other theories, when drawing districts may be tested in the very near future—and the Court’s logic in Evenwel will surely be at the center of the disputes.

Justice Sotomayor: "too many" states disenfranchise prisoners

In my quick thoughts on oral argument in Evenwel v. Abbott, my read of the PDF transcript missed this exchange, which I picked up listening to the audio this weekend:

MR. CONSOVOY: . . . The State can solve this problem themselves. These States can enfranchise these people and give them the vote. The States come here to say we do not want them to vote, but we want them to count for districting. That should be rejected by this Court.
Second--
JUSTICE SOTOMAYOR: That's not quite accurate. For--for most states, too many, they disenfranchise prisoners, except for those who come from that locale, which is quite rational. Most States disenfranchise the mentally ill. So how are they--who else are they going to disenfranchise.

It might be that Justice Sotomayor conflated "prison gerrymandering" (the practice of including prisoners in the district where they are imprisoned for purposes of determining the total population in a district, rather than deeming prisoners residents of where they last lived before being imprisoned) with felon disenfranchisement--that's the only way to make sense of the "except for those who come from that locale" remark. But the comment regarding "too many" states that disenfranchise "prisoners" (which, as I last checked, was every state except for Vermont and Maine), as opposed to ex-felons, stood out listening to oral argument.

Quick thoughts from today's oral argument in Evenwel v. Abbott

Following up on recent discussions (one, two, three) of Evenwel v. Abbott, I read today's oral argument transcript (PDF). Here are a few quick thoughts.

A back and forth occurred about whether women should have been included for purposes of redistricting between 1868 and 1920:

JUSTICE GINSBURG:  Is it your view that what the Fourteenth Amendment means is that in all the years between ­­-- what was it? ­­-- 1868 and 1920, it was wrong for the States to include, for these purposes, women? They were not eligible voters.
MR. CONSOVOY:  Any ­­-- there is no question that was a problem.  It was an ­­ it was an issue in the '60s with minorities as well who were ­­-- who were disenfranchised.  The ­­ the Court in Reynolds at the time was doing more than one thing at once.
JUSTICE GINSBURG:  But you're saying that that was wrong.  I mean, in your interpretation of the Fourteenth Amendment from 1869 till 1920, the State should not have been counting women for ­­-- for purposes of determining representation in the State legislature.
MR. CONSOVOY:  For purposes of the ­­ of the Equal Protection Clause, the one­-person, one­-vote rule protects voters.  If disenfranchisement of women or minorities is an issue, those cases could have been brought.  Eventually, that issue was resolved by this country, as was minority representation.

Justice Kagan raised some thoughts on the nature of the Fourteenth Amendment:

JUSTICE KAGAN:  Mr. Consovoy, could I go back to the question that Justice Breyer raised and can ­­ stripped, if he'll permit me, of the Guarantee Clause, because the Fourteenth Amendment is actually quite ­­ you know, the framers of the Fourteenth Amendment explicitly considered this issue, and, you know, made a decision.
So Senator Howard, who introduces the Amendment on behalf of the joint committee that drafts it, talks about these deliberations.  And he says the committee adopted numbers as the most just and satisfactory basis, and that's the principle upon which the Constitution itself was originally framed, referring back to the original drafting. And then he says numbers, not voters; numbers, not property; this is the theory of the Constitution.
Now, this is the theory of the Constitution as to one thing, which is not the thing that you are talking about. This is the theory of the Constitution as to House apportionment.
But, again, I'll go back to this question. This is just a clear, explicit choice that was made about what it meant to -- to have equal representation with respect to that area. And how you go from that being mandated to it being prohibited in the State context is something that I still can't quite work myself around.
MR. CONSOVOY: Justice Harland agreed with you. He did.
JUSTICE KAGAN: That's a good person to be on the side of.

Late in appellant's argument, Justice Breyer and Sotomayor also floated about whether to include or exclude children in the population for redistricting purposes, too.

Chief Justice Robert opened early with a remark about "one person, one vote": "Well, it is --0 it is called the one-person, one-vote. That seems to be designed to protect voters."

Justice Alito opened with a potential dichotomy that attracted much discussion.

JUSTICE ALITO:  There are at least two arguments that could support your position.  One is that it's one­-person, one­-vote, and what counts is giving each person an equal chance of affecting the outcome of the election.  But total population figures are a good enough proxy for eligible voters.  That's one possible argument.
And that's ­­-- that's what the census measures, and that's close enough.

 Another argument is that representational equality is the real basis, and therefore that's why you use population.

...
It seems to me that the two interests are not always consistent. They can be in great conflict.
You can have a situation if you -- if you want to equalize population, you may have a situation where you cause great inequality in the -- the chances of any -- of voters affecting the outcome of the election. On the other hand, if you choose eligible voters only, then you may have a situation where every person within two districts does not have an equal representation defined in some way in the legislature.
I don't think you can just say, well, it's -- you know, we serve both. What do you do when they come into conflict?

Justice Breyer worried about theirs of virtual representation:

[MR. KELLER:] The issue is does State -- does a State have to have the same amount of constituents per representative? And a State can do so. It's a legitimate--
JUSTICE BREYER: That sounds an awful lot what they had in 1750 or something, where the British Parliament said, well, don't worry, America, you're represented by the people in England because after all, they represent everybody in the British Empire.

Justice Sotomayor appeared interested in whether the census data used for the Voting Rights Act would be appropriate to use for an equal voting analysis. There was specific mention of the Persily brief and a disagreement with the United States on the view of Section 2 of the Voting Rights Act (tr. 37-39).

Justice Alito led a line of inquiry about who has standing--a question reserved by the Court in Baker v. Carr.

There is little that I can glean from the argument, except a lot of curiosity about the right standards and what they might look like. Perhaps of note? Justice Scalia did not ask a single question the entire argument.

This post has been updated.