Legal Docket: Gerrymandering and race

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 25th of March, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s that time of year…

EICHER: What, for head colds?

REICHARD: Poor you, Nick. Nope, I’m talking about… The Supreme Court is handing down rulings fast and furious. So it’s going to be a busy time here between now and the end of the term in June.

Before we get into the oral arguments today, we have five rulings to report.

And here’s number one (Air & Liquid Systems Corp.): A question of product liability, and this one’s important because the court here holds a corporation liable even for a product it didn’t make.

The typical legal rule is that any post-sale alterations to a product are not the responsibility of the manufacturer.

But this case adds an exception.

The court held The Air & Liquid Systems Corporation responsible for failing to warn of the dangers of asbestos. Two men got cancer from handling asbestos that needed to be added to the company’s product. Air & Liquid Systems didn’t make the asbestos. But in order for the product to function as intended, the company required that asbestos be added.

That’s the key distinction, and it’s the basis for the Supreme Court’s finding the company responsible.

EICHER: Next (Nielsen v Preap), a 5-4 ruling that split along the lines of those who read the law as Congress writes it and those who seek to discern what Congress might have meant.

In this case, a man from Cambodia had been a lawful permanent resident in the United States for more than 20 years. He served some time for marijuana possession and gained release.

But he got into trouble again for the crime of battery. Immigration took him into custody for that crime—seven years after he finished up his drug sentence.

The man argued that was unfair to wait that long. He contended the law required the government to detain him the minute he got out of prison the first time. Not years later.

The five-justice majority said not so. Congress wrote a law that instructs the government to detain immigrants who commit certain crimes when they are released from prison.

“When” isn’t time specific.

REICHARD: This was a classic conservative/liberal split, and I’ll add that in a rare move, Justice Stephen Breyer read his dissent from the bench. Had he and the three other liberal leaning justices had their way, the noncitizen would have won on the basis of the nation’s “values.”

The Wall Street Journal editorial board suggested that’s a fuzzy concept that puts the courts in the business of legislating.

Ok, third ruling (Washington State Dept of Licensing v Cougar):

This case asked whether a Native American tribe owes fuel taxes on gas brought into Washington State from another state. Answer: No.

A tribal owned company is exempt from those taxes under an 1855 treaty signed by the U.S. government and the Yakama Nation. Another 5-4 decision, but with Justice Neil Gorsuch voting with the court’s four liberals.

EICHER: On to the fourth ruling (Obduskey v McCarthy & Holthus ), this one unanimous: it says lawyers who foreclose on homes are not subject to the Fair Debt Collection Practices Act if they do the foreclosure outside the court system. The justices said the law applies only to those who foreclose using the judicial process, with the oversight of a judge.

REICHARD: And finally (Frank v Gaos), the case that asked how money damages from a class-action suit can be distributed when it’s just not economically reasonable to do it. Divided among a million people, equally split damages money wasn’t sufficient to justify the mailing costs.

The justices didn’t reach the merits of the case. Instead, they remanded to lower court to figure out whether the plaintiffs here even have the right to sue in the first place.

Well, now let’s move on to the highlights of two oral arguments last week.

EICHER: Yes, this first one has been a recurring issue and it has to do with the way we carve up legislative districts.

The term we hear over and over is “gerrymander.” In other words, drawing political maps to one party’s political advantage.

Every 10 years, officials do have to redraw those boundaries to reflect changes in the official census. But the problem for years has been allegations of racial discrimination, or rank partisanship driving the process.

This particular case is at the Supreme Court for the second time. It arises in Virginia. Republicans drew the districts in a way they say complies with the Voting Rights Act of 1965. But Democrats say the maps dilute their power on racial grounds—and that’s unlawful.

REICHARD: When the High Court ruled on this case the first time around in 2017, it sent the case back to lower court. The instruction was for that court to use the correct legal standard to evaluate whether racial gerrymandering happened.

The lower court decided race was the main factor in the way the state drew the maps in 11 of the 12 districts challenged.  

So it threw the maps out and ordered new ones drawn.

That ruling is now what’s under challenge by the Virginia House of Delegates, which has the responsibility to draw the maps. But now the issue, one of them anyway, is whether the lower court was wrong. It said delegates must prove race was used only to comply with the Voting Rights Act. And not for some other, nefarious motive.

Paul Clement is the lawyer for the map-drawers. He argued his clients are doing their best to abide by the law against a difficult backdrop. Democrats once demanded districts with mostly racial minorities in them to ensure Democrats would win.

But that comes with tradeoffs: namely that other districts would necessarily lean Republican. And now Democrats complain about that, too.

Justice Sonia Sotomayor pushed back on Clement.

SOTOMAYOR: They drew lines in the middle of a street, with black houses on one side and white houses on another side. It’s hard for me to imagine how race isn’t predominant when they’re getting down to the nitty-gritty on the basis of what side of a street you live on. I don’t know how you can look at that and not think that race predominated.

Chief Justice John Roberts pointed out the elephant in the room in this comment to a lawyer for the state board of elections.

ROBERTS: Maybe you can just use common sense … . Well, you know what I mean. I haven’t seen the case I don’t think where the Democratic legislature has challenged an alleged gerrymander because it was too favorable to Democrats or vice versa.

The Chief Justice wondered if witness credibility is enough to determine whether too much race was used. But Clement, arguing in favor of keeping the maps, pushed back hard.

CLEMENT: The person who was the principal author of the map, everybody agrees, was Delegate Jones. The only person who knows the details … was Mr. Morgan. Now if you say you’re going to deem their testimony not just incredible in certain particulars but across the board, then you’re left with Hamlet without the prince …

But Justice Elena Kagan underscored what is clear about this muddied area of law. Clement answered her much later in the argument, citing the percentage of black vote placed in each contested district.

KAGAN: If there’s one thing that we’ve made clear again and again, it’s that the analysis ought to be (made) district by district.

CLEMENT: And that just shows you the dilemma that people face. And this is not a case like Alabama where the state picked a cartoonish figure … this is a case where they picked 55%, which frankly is exactly the right number to avoid retrogression in contested primaries …

“Retrogression” means making sure black voters don’t lose political power.

As for those challenging the maps, lawyer Marc Elias argued strict scrutiny is required when race in involved. That’s the highest legal standard to meet. And this map? Doesn’t pass muster.

ELIAS: It is not in dispute in this case that the Commonwealth of Virginia adopted a one size fits all, 55% racial rule … . If the state creates a 55 percent blanket rule because of how African-Americans in a rural area vote on the border of North Carolina and then generalized that to urban centers throughout the commonwealth then it has engaged in racial stereotyping that triggers strict scrutiny.

Lots of back and forth around who has the right to sue went on, and I won’t drag you through those weeds.

But it’s a big deal because if you can’t get into court in the first place, your options to challenge anything in law disappears.

Justice Brett Kavanaugh defended the gerrymandered map, given the difficulty in pleasing everyone. Here, he directs the question to Elias, who wants the maps thrown out.

KAVANAUGH: Everyone agrees here that there needed to be 12 majority-minority districts, right? … I’m wondering why 55 is so problematic here, given that the states have to have some flexibility… . If a state faced with these facts said, ‘We’re going to do 52 percent or 53 percent,’ they would be hammered from the other side, saying you are discriminating against African-American voters because you’re not giving the voters a sufficient opportunity to elect the candidate of their choice. They do more here by going with 55.

Overall, I think argument leaned in favor of the Republicans here, although the traditional liberal/conservative split was palpable.

Except in one way.

Justice Clarence Thomas was silent during argument, as is his custom. But an odd aspect of this is he’s been clear in other rulings that he does not like race as a consideration at all. In nearly anything.

And that could align him with the liberals on this matter, albeit on separate rationales. An unusual alliance, if that’s how it turns out.

Okay, second and final argument (Smith v Berryhill).

Every year the Social Security Administration denies thousands of Americans disability benefits.

Often, denied individuals seek an appeal, only to be rejected again because they didn’t file the required paperwork on time.

In this case, Ricky Lee Smith says it violates his due process rights to be denied a hearing over late paperwork. That shouldn’t be a good enough reason to deny him court review of an administrative decision cutting off benefits.

The Solicitor General’s office agreed Smith should lose under current regulations. But it urged the court to send the case back to lower court because the regulations ought to be changed.

That left the Social Security Administration lawyer in an awkward position. Lawyer Deepak Gupta argued changing the rules would open floodgates of litigation.

But the Solicitor General’s office didn’t think that, and the ever-practical Justice Kagan pointed out the oddity here.

GUPTA: … about the extent to which if you were to adopt the party’s position, it applies to all of these other regimes. 

KAGAN:Does it feel a little strange, Mr. Gupta, to be making this argument when the Solicitor General is not?

GUPTA: It is. (laughter) But I–

KAGAN: I mean, one is tempted … .

GUPTA: —suppose that’s why I’m here.

KAGAN: —to say, if they don’t care, why should anybody else?

Maybe you’ve heard the line that a diplomat is someone who, shall I say?, places Hades on your travel itinerary. But does so in a way that you look forward to the trip.

This is precisely how the genteel, ever-polite Justice Gorsuch explained where lawyer Gupta’s argument was headed.

GORSUCH: Mr. Gupta, I appreciate your heroic efforts there with that argument and your appointment to the court. Thank you for your service.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) The west facade of the Supreme Court Building bears the motto “Equal Justice Under Law,” in Washington, Wednesday, March 20, 2019.

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