Concluding a Discussion of the Supreme Court's Term

The court this term went in different directions on the two sorts of gerrymandering.

It may have finally closed out its long history of fiddling around the matter of "partisan gerrymandering," by deciding that it doesn't possess and cannot fashion the tools to deal with that.

I'm reminded somewhat of the "shopping malls as public forums" cases in the 1960s and into the '70s. The idea was that malls, though privately owned, were functionally public places, so people have first amendment rights there. Even the Warren Court was hesitant about this, but the hesitancy seemed to make the subject cutting edge/intellectually stimulating. Eventually, though, the Burger court decided the idea had been a bad one, and backed far away.  The Roberts court has now done much the same with partisan gerrymandering in Rucho v. Common Cause. 

But a couple of weeks earlier, the court had decided Virginia House of Delegates v Bethune, a case that seems to indicate that there is still life in the charge that legislators are drawing lines based on race, to preserve the premium value of whiteness.

The Court did this is an indirect procedural way, but still ... the thing was done. The issue of the proper remedies for racial gerrymandering remains very much on the judicial agenda.

Church and State

Law on the establishment clause is changing at a great pace. What shape it will take in, say, another ten years is utterly beyond my ken.

Near the end of this last term, SCOTUS sharply cut back on the doctrinal work that the Lemon test is supposed to do in Church-State issues. The Lemon test, for decades, has instructed judges that a government action that on its face involves religious institutions or symbols violates the COTUS unless it (a) has a secular purpose, (b) neither inhibits nor advances religion, and (c) does not foster an excessive entanglement between church and state. This test has been subject to a lot of criticism, [and I have done some of the criticizing myself.] But it has been the law.

Now, in its deliberations regarding the AMERICAN LEGION case, the Supreme Court seems to have considered simply erasing the Lemon test: considered is a key words there, it backed away from erasure. In a decision by Justice Samuel Alito, the court said that the tripartite test just described does not apply to "established, religiously expressive monuments, symbols and practices." Such as the maintenance of large crosses on public land. Lemon might still apply to some other types of case, but not to that type.

Under the heading of "free exercise of religion," SCOTUS also looked this term at the right of religiously motivated bakers to refuse services to same-sex couples. This time the underlying incident arose in Oregon, last session it had come to them from Colorado. This time the Court returned ("remanded") the case to the lower courts and said in essence, "read our decision in the Colorado matter and look at this one again. "

But the Colorado case in essence evaded the question of principle in procedural-ish grounds that may not apply here, so this doesn't mean much other than "we can't decide this right now, so go home and leave us alone."

All of this is an unsustainable muddle so I am sure it will look very different in ten years but I have no idea whether it will by then have reached some equilibrium or, if it has, what that will look like. I am reminded of the old Chinese curse, "may you live in interesting times."

Tennessee Wine and Spirits

In the rush of end-term business, too, the Court struck down a Tennessee law imposing durational-residency requirements on anyone who wants to operate a retail liquor store. Under standard "dormant commerce clause" doctrine, emerging in recent decades from a line of precedent going back to Justice John Marshall and the steamships ferrying people across the Hudson River in the early days of the republic, a state law that discriminates against out-of-state goods or non-resident economic actors must be struck down in the absence of a showing that the law advances a legitimate local purpose and is narrowly tailored to achieve that purpose.

Protecting local businesses against competition from out of state is NOT a legitimate local purpose.

The health and safety of locals is a legitimate local purpose, but the residency requirement has as the decision puts it "at best a highly attenuated relationship to public health or safety..."  So the regulation has to go.

It is good to see a decision that strikes me as unambiguously sensible out of this court now and then, and this is one.

Puerto Rico: A Decision to Decide

My final thought about this Session is that it is well the high court has agreed to hear a dispute on the constitutionality of the Puerto Rico restructuring board.

Specifically, it has agreed to review a 1st circuit decision that the process by which the members of the board that oversees the reorganization of Puerto Rico's debts were appointed, is unconstitutional.

Recently, the top 20 of the candidates for the Presidential nomination of the Democratic Party held a debate over two evenings, a total of four televised hours. They discussed a lot of topics. But as some observers thereafter noted, there was almost no mention of Puerto Rico at all Julian Castro mentioned it in an autobiographical aside. That was it.

Why is this surprising? [They probably didn't mention Wyoming much either, after all.] Well, it is surprising because there are a number of respects in which Puerto Rico might logically have come up. For example, the Commonwealth's power grid needs a lot of rebuilding, and this might well provide a test case of both political parties' professed commitment to "infrastructure" as an issue. And the island is regularly in the path of hurricanes, so it is an inkblot in which a candidate can see his/her own ideas about climate change.

But perhaps the best reason the Puerto Rico MIGHT have come up is this: it faces a huge debt crisis and a consequent need for financial restructuring. It is an extreme case of a situation that is also true of a number of US cities.

Perhaps some will find it reassuring that there is one branch of the federal government, the judiciary, that is trying to work through related issues systematically. And with that note of purely hypothetical reassurance I will close this year's SCOTUS review from Jamesian Philosophy Refreshed.