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 members 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.

Amicus briefs in support of appellants in Evenwel v. Abbott

Last week, amicus briefs in support of appellants in Evenwel v. Abbott were due. The following parties submitted briefs. I'll add the PDFs of each as I can find them (from counsel).

American Civil Rights Union

Eagle Forum Education & Legal Defense Fund, Inc.

Project 21

Tennessee State Legislators and The Judicial Education Project

Cato Institute and Reason Foundation

Mountain States Legal Foundation

Demographers Peter A. Morrison, et al.

Center for Constitutional Jurisprudence

Immigration Reform Law Institute

Judicial Watch, Inc., et al.

City of Yakima, Washington

Quick thoughts on Arizona State Legislature v. Arizona Independent Redistricting Commission

Sixteen months ago, I highlighted a largely-unnoticed case in which Arizona's state legislature challenged a delegation of power over its power to draw congressional districts from itself to an independent redistricting commission, a delegation that occurred via ballot initiative. I noted the three-judge panel district court's decision, was the first to mention Paul Clement's involvement in the case, and had a few thoughts from oral argument. Now have a decision (PDF).

The opinion written by Justice Ginsburg, in a 5-4 vote, affirmed the three-judge panel and permits the independent redistricting commission. (This vote total is deceptive: two justices would have dismissed the case for lack of jurisdiction, effectively allowing the law to remain on the books; so, in theory, 7 justices agreed with the result in some remote way, but only 5 agreed on the merits of the constitutional claim.)

First, the case permits the legislature to have standing, distinguishing it from Raines v. Byrd, in which individual members attempted to assert standing. This, I think, portends poorly for the legislators suing in Hickenlooper v. Kerr, the Guarantee Clause case I've written about before.

Second, the opinion spends a substantial amount of time emphasizing that federal statute permits the exercise of power here. But that only addresses half the question: the other half the constitutional question, because if Congress lacked the power to authorize such an exercise of power, then the statute would fall, too.

Third, on the Elections Clause issue, the bulk of the analysis turns on a generous definition of the word "legislature," including the power to delegate authority:

To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.

...

As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.

Fourth, Chief Justice Roberts pens the principle dissent relying on several core arguments: that the word "Legislature" relating to the election of Senators is instructive; the definition of the legislature; etc.

But, he also writes about the power of delegation, with some doubt:

The majority concedes that the unelected Commission is  not “the Legislature” of Arizona. The Court contends instead that the people of Arizona as a whole constitute “the Legislature” for purposes of the Elections Clause, andthat they may delegate the congressional districting authority conferred by that Clause to the Commission. Ante, at 25. The majority provides no support for the delegation part of its theory, and I am not sure whether the majority’s analysis is correct on that issue. But even giving the Court the benefit of the doubt in that regard, the Commission is still unconstitutional.

Fifth, the sides dispute the functionalist definition of "legislature." From Justice Ginsburg:

THE CHIEF JUSTICE, in dissent, features, indeed trumpets repeatedly, the pre-Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function. As we explained in Hawke, “the power to legislate in the enactment of the laws of a State is derivedf rom the people of the State.” 253 U. S., at 230. Ratification, however, “has its source in the Federal Constitution” and is not “an act of legislation within the proper sense of the word.” Id., at 229–230.

Constantly resisted by THE CHIEF JUSTICE, but well understood in opinions that speak for the Court: “[T]he  meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285
U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections.

Chief Justice Roberts also addresses the functionalism argument of "legislature":

As a matter of ordinary language and common sense, however, a difference in function does not imply a difference in meaning. A car, for example, generally serves a transportation function. But it can also fulfill a storage function. At a tailgate party or a drive-in movie, it may play an entertainment function. In the absence of vacancies at the roadside motel, it could provide a lodging function. To a neighbor with a dead battery, it offers an electricity generation function. And yet, a person describing a“car” engaged in any of these varied functions would undoubtedly be referring to the same thing.

Sixth, the Court struggles with congressional election precedent (more on this later--I have much to say!). It examine Baldwin v. Trowbridge, as Congress examined whether to seat someone elected pursuant to the state legislature's rules or the constitutional rules. From Justice Ginsburg:

The House Elections Committee, in a divided vote, ruled that, under the Elections Clause, the Michigan Legislature had the paramount power.

As the minority report in Baldwin pointed out, however,the Supreme Court of Michigan had reached the opposite conclusion, holding, as courts generally do, that state legislation in direct conflict with the State’s constitution is void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The Baldwin majority’s ruling, furthermore, appears in tension with the Election Committee’s unanimous decision in Shiel just five years earlier. (The Committee, we repeat,“ha[d] no doubt that the constitution of the State ha[d]fixed, beyond the control of the legislature, the time for holding [a congressional] election.” Shiel, H. R. Misc. Doc. No. 57, at 351.) Finally, it was perhaps not entirely accidental that the candidate the Committee declared winner in Baldwin belonged to the same political party as all but one member of the House Committee majority responsible for the decision.

And from Chief Justice Roberts:

The House Elections Committee explained that the Elections Clause conferred power on “the Legislature” of  Michigan to prescribe election regulations. “But,” the Committee asked, “what is meant by ‘the legislature?’ Does it mean the legislative power of the State, whichwould include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country?” Id., at 47. The Committee decided, and the full House agreed,that “the Legislature” in the Elections Clause was the “legislature eo nomine”—the legislature by that name, a representative body.

...

The report cites a Michigan Supreme Court precedent that allegedly reached a contrary result, but that case turned entirely on state constitutional questions arising from a state election—not federal constitutional questions arising from a federal election. . . . In any event, to the degree that the two precedents are inconsistent, the later decision in Baldwin should govern

[n.3] The majority’s suggestion that Baldwin should be dismissed as an act of partisanship appears to have no basis, unless one is willing to regard as tainted every decision in favor of a candidate from the same party as a majority of the Elections Committee.

Seventh, Justice Scalia (joined by Justice Thomas) writes that this is not within the Article III power of the courts, particularly citing the shaky foundation of Coleman v. Miller as a basis for asserting authority over the case. And Justice Thomas (joined by Justice Scalia) noted that this case is not truly about deferring to state ballot initiatives, as the Court has felt comfortable striking down such regulations before.

Not many surprises in the opinions, I don't think. But, there is much to delve into in the months ahead.

Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.

You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.

And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

New MP3: Eminem - '97 Bonnie and Clyde ft. Chief Justice John Roberts

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I grew up on 12 Mile Road in the 313.* It's with some affection, then, that I hold the music of Detroit, from Motown to techno, in high esteem.

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Eminem supporters storm the State of the Union address and beg onlooking Supreme Court justices to "Protect the 1st Amendment." (Screenshots from Eminem, "The Mosh Continues" (2004).)

Eminem is probably one of the most gifted lyricists in rap--he moves far beyond rhyme to embrace assonance, consonance, alliteration, and many more poetic forms in his lyrics. (This 90-second video clip of his interview with Anderson Cooper on the word "orange" teaches more about poetry more than most students learn in all of high school.) His music, however, is not for the faint of heart, given the obscenity and... shall we say, adult content of those lyrics.

An early album in 1997 featured "Just the Two of Us," a song about domestic violence in which Eminem and his daughter conspire to kill the girl's mother. (The song samples heavily from the 1981 Grover Washington Jr. and Bill Whithers song.) The song was re-recorded, extended, and released under the title "'97 Bonnie and Clyde" on another album in 1999.

Last week, the United States Supreme Court heard oral argument in Elonis v. United States, in which Defendant was convicted of threatening another in a Facebook post. Asking about the scope of the First Amendment when it comes to threatening speech, Chief Justice John Roberts quoted from "'97 Bonnie and Clyde." From the transcript (PDF):

CHIEF JUSTICE ROBERTS: What about the language [in] the Petitioner's brief? You know, "Da-da make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.

Now, under your test, could that be prosecuted.

MR. DREEBEN: No. Because if you look at the context of these statements--

CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?

MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained.

With that, I thought a mashup was in order. With the enormous help and creative talent of an old friend and talented musician, Nate Wazoo, here's "Roberts and Clyde." an MP3 of a 52-second sample of the song.

You can purchase a copy of the original "'97 Bonnie and Clyde" at sites like Amazon.

*Strictly speaking, that was Royal Oak, not Detroit--the 313 area code was subdivided in 1993.

Copyright notice: the use of any copyrighted material is fair use for non-commercial, satirical, and educational purposes.

Glossary: What words and phrases in Supreme Court analysis mean

It's another October Term for the Supreme Court!

And that means it's another year of compelling Supreme Court analysis.

You may not be familiar with the jargon that usually accompanies Supreme Court analysis. Here's a brief glossary of key terms, and what they mean when an author uses them.

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along gender lines: "Justice Breyer did not vote along partisan lines."

along partisan lines: "Thank goodness Justices Stevens and Souter retired."

angry dissent: "I [the author] agree with the majority."

bare majority: “The vote was 5-4, and I agree with the four dissenting justices.”

bitter dissent: "I agree with the majority."

blistering dissent: "I agree with the dissent."

bold: "There is no meaningful textual support for the argument the Court advanced."

Citizens United: "This article is clickbait."

hammered: "The opinion was disrespectful, but I enjoyed it."

impassioned: "The opinion might not have had the law, or the facts, on its side, but it sure did have the adjectives and the adverbs."

the justice was moved to read his/her dissent aloud from the bench: "I'm bursting at the seams to inform you that I agree with that dissent."

Lochner: "I'm about to rip Chief Justice Roberts for being pro-business."

major blow: "The losing party actually lost."

the majority dismissed these concerns: "I had concerns that the majority did not address."

may: "This is not a fact."

many observers: "The first law professor who answered my phone call."

members of Congress expressed outrage: "Some people have never read Article V of the United States Constitution."

modest: "The opinion did not discuss as many things as I wanted."

narrowly divided: "The vote was 5-4, and I agree with the four dissenting justices."

passionate dissent: "I agree with the dissent."

potentially: "I am making things up."

powerful dissent: "I agree with the dissent."

rebuked: "The losing party actually lost."

repeatedly: "More than once."

restraint: "I am going to compliment Chief Justice Roberts."

scathing: "The opinion used a lot of hyperbolic words."

setback: "The losing party actually lost."

sharply divided: "The vote was 5-4, and I agree with the four dissenting justices."

sidestepped: "The Court did not include very much dicta."

speculated: "You should not read the rest of this sentence."

supremely: "I lack any creativity."

surprising: "My rampant speculation after listening to oral argument was wrong."

sweeping: "I think this case is important."

tea leaves: "You should not read the rest of this article."

unbroken silence: "I'm going to discuss Justice Thomas."

unprecedented: "It turns out that the Court had a purpose when it granted certiorari to address a new issue."

unusual alliance: "This isn't the 5-4 opinion I wanted to write about."

waded: "The Court probably regrets granting cert."