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Sociological Gobbledygook

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"Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."  -- Justice Hugo Black, concurring in McGautha v. California (1971).

Yesterday in the reapportionment case, Chief Justice Roberts expressed a similar sentiment on transcript page 40.

[T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.
No, Mr. Chief Justice, it's not your educational background.  I call it "sociobabble," a variation on the "psychobabble" theme, but "sociological gobbledygook" will do nicely.
A bit earlier, on page 37, the Chief openly worried about how reapportionment decisions by the Supreme Court would be perceived by the public if the Court really did import political science theories about "efficiency gap" (EG) into the Constitution:

And if you're the intelligent man on the street and the Court issues a decision, and let's say, okay, the Democrats win, and that person will say: "Well, why did the Democrats win?" And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.

And 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.

And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
Even greater than the danger to the Court's status, in my view, is the danger to the people's right of self-government.

CJLF takes no position on reapportionment.  Personally, I believe that gerrymandering is a despicable practice that ought to be eradicated.  But that does not make it a constitutional issue.  Gerrymandering has been with us from the beginning.  It is named for Massachusetts Governor Elbridge Gerry, a signer of the Declaration of Independence.  If the Fourteenth Amendment, ratified in 1868, had outlawed gerrymandering, it would have been noticed in 1870.

People should choose their representatives; representative should not choose their constituents.  But if the people of a state want to take reapportionment away from their legislature, they can.  The people of California did.

That brings us back to the Chief Justice's remark at the top of this post.  If the Constitution of the United States leaves a decision to the democratic process, can the courts take it away on the basis of current theories of social science?  They should not.  Theories come and go.  The term "settled science" is much in vogue now, but most of what that label gets stuck on is recent and far from settled.  Science must have its assumptions constantly challenged and put to empirical test.  The Constitution, on the other hand, is a set of basic rules of government intended to endure until the people change them through the amendment process, which was intentionally made difficult.

If current theories of sociology, criminology, or political science are to be written into law, let the people write them in, directly or through their representatives.  Then the people can erase them the same way if they turn out to be wrong.  Current theories provide no basis for diminishing the people's right of self-government and usurping to the courts decisions that the Constitution does not assign to them.

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Decencyevolves: What happens to the notion of democracy or one person one vote if a party can gerrymander its way into a position of permanent majority through computer modeling and extreme gerrymandering? Justice Kennedy has suggested that there have to be limits and if so, I think the case before the Court likely transgresses them.

A recent story from Minnesota noted that:

“The case now before the Supreme Court arises from our neighbor, Wisconsin, which, after Republicans gained complete control of state government for the first time in a decennial redistricting year, drew a map of state legislative districts that enabled Republicans in the next election to convert 48.6 percent of the statewide vote for State Assembly candidates into 60 of the Assembly’s 99 seats.

Justice Sonia Sotomayor asked Erin E. Murphy, a lawyer defending the map drawn for this purpose: “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?”

According to the New York Times coverage of today’s oral arguments, Murphy replied that gerrymandering “produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.”

What sort of answer is that?

The preservation of a working democracy within states should matter to the Court. In the end, I hope the plaintiff prevails.

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