UPDATE: Thanks to Steven for noting (in a PoliBlog scion grafted below) that the Democratic majority of the House delegation from Texas after 2002 was actually a reversal of the electoral majority. Republicans had 53% of the statewide votes, yet only 47% of the Texas House seats. In that sense, indeed, the 2004 outcome, despite being almost 2:1 Republican, is a more accurate reflection of the votes (58-39, or about 1.5:1 R). So, the old plan was fundamentally flawed and should have been thrown out. Nonetheless, the real thrust of my argument in this post (and as amplified in my comment below in response to Steven) was not that one partisan gerrymander was worse than another. Procedurally, the two Texas districting plans were equally bad, even if the more recent one is actually less substantively flawed. Rather, my argument was, and is, that the more recent one in Texas has the potential effect of protecting a precarious right-wing House majority from adverse national vote swings, and that was clearly its intention. And a right-wing majority on the Supreme Court has said that is just fine. Partisan assignment of voters to districts, and partisan adjudication of the process. It’s a travesty of democracy.
I don’t want to let the attention given to the Bush administration’s apparent defeat in the Hamdan case completely drown out the far more important victories that opponents of democratization and electoral reform won in two earlier Supreme Court decisions in the past week.
The other two cases both affect the fariness of elections, and thus the essence of democracy itself. They are, in that sense, vastly more fundamental than the question of military tribunals–which the executive may find ways to continue anyway–important though the latter issue is.
The striking thing about the two election-related decisions is that in one case the Court overruled a state legislature and in the other it upheld one. Thus there is no common federalism or states-rights thread here. The Court said that the legislature in Vermont over-stepped its authority in limiting campaign contributions, and thereby accepted the principle that the wealthy have “freer” speech than the rest of us. In the Texas redistricting case, on the other hand, it said that it is perfectly all right for a state legislature to produce a partisan-biased districting plan–even mid-census–and thus further entrenched the principle that politicians should choose their voters rather than the other way around.
It is obvious that the Texas legislature’s act has far more impact on those of us outside of the state in question than does the Vermont act. The Republican party would not have gained seats in 2004, despite losing votes relative to 2002 (and falling below 50%), had it not been for the Delaymandered districts in Texas. Thus the actions of the Texas legislature not only affect the representation of all Texans (something which the archaic theory of democracy apparently still prevailing in this land might permit) but ultimately affect the representation of all of us (something no theory of democracy ought to admit).
The now-overturned Vermont law, on the other hand, would have limited impact on those of outside Vermont. Sure, if it were to spread nationwide–beyond the friendly confines of the home of Bernie Sanders and Howard Dean–it would have dramatic impact, to the immense benefit of ordinary voters. The Court nipped that in the bud.
The common thread of these two cases is support for the further entrenchment of right-wing political forces in this country. If there was any doubt that the US Supreme Court is continuing to assert its role as a bulwark against the advance of democratic representation, these cases should lay such doubt to rest. It did not matter whether the justices had to act to uphold or overturn a state decision; what mattered was acting to buttress the power of those who already have it.
Regarding the Hamdan case, I can’t help but wonder if Bush-Cheney will find a way to defy or override the very institution without which they would not have had their first term in order to continue prosecuting–as they alone see fit–the “war” on which they won their second.
Balkinization has an interesting take on how the government may respond:
So what the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.
…by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion. [emphasis in original]
Would that the Court really would force democracy, but that’s a fantasy. Nonetheless, Balkin makes a very important observation about putting the whole issue back in the hands of Congress. Is the issue of oversight of the “war” on “terror” something that will make the Party of Power sufficiently squeamish in an election year that they will not act to effectively reverse the Hamdan decision? Or will the Democrats be the squeamish ones, with the Party of Power holding yet another issue with which to drive home the claim of their own indispensibility in keeping us “safe”? The Court, with Hamdan, may have handed down a third decision in one week that will assist the right electorally.
Note: The link to the Balkinization post is actually a link to the blog itself, because when I tried it, the post permalink was not working.