The Feehery Theory

Supreme Court Chumps

Posted on June 30, 2015

(This originally appeared in the Wall Street Journal’s Think Tank)

It took nine decades for Congress and the states to amend the Constitution to allow for the direct election of U.S. senators.

It took only a few years–and a couple of months before the Supreme Court–for control of congressional redistricting to be taken away from politicians and put directly into the hands of the people.

Of course, there was no formal constitutional amendment in the Arizona redistricting case–just enough votes at the Supreme Court to make it happen without a long, arduous public discussion.

In his dissent Monday, Chief Justice John Roberts sarcastically called those earlier reformers “chumps” for not short-circuiting the process and ignoring the words of the Constitution.

(Some conservatives could argue that Mr. Roberts was guilty of the same crime when he gave the legislative branch the benefit of the doubt in his majority opinion in King v. Burwell. Don’t read the words that Congress put in the law, the chief urged. That’s not what lawmakers intended.)

Unlike Obamacare or same-sex marriage, redistricting is not at the top of many people’s agenda. It’s a decennial process completed after each census, and I suppose it was always dangerous to put politicians in charge of this intensely political process, akin to putting the military in charge of declaring war. Sometimes knowing too much about an issue can negatively skew the decision.

We know that politicians tend to use the redistricting process to further their careers. We also know that the redistricting process is fundamentally broken: There are too many seats for which there is no real competition between the two major parties and, as a result, we have a House of Representatives that is sharply divided on ideological and partisan grounds.

But that doesn’t give the Supreme Court the power to arbitrarily ignore the Constitution’s language to fix this problem.

There is a right way and a wrong way to handle such issues. Long ago, the progressives mobilized the American people after decades of activism and got politicians to bend to their will to allow the direct election of senators. The court took another tack.