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A Judicial Power Grab Echoes Bush v. Gore

facade of the Pennsylvania Judicial Center
Pennsylvania Judicial Center, Harrisburg. Photo by Wikimedia Commons user Niagara.

We have a judicial branch of government to serve as a check on executive and legislative powers. The system works pretty well, except when the judiciary tries to grab those powers for itself.

That is exactly what has been happening with increasing frequency in the 21st century.

The latest example comes from Pennsylvania, where the state Supreme Court threw out the state’s congressional map, ruling that it gave Republicans an unfair advantage.

The Pennsylvania justices practically tripped over themselves in their rush to change the course of this year’s congressional balloting. They heard arguments on Jan. 17, a Wednesday; their decision wiping out the GOP-drawn map was handed down the following Monday, Jan. 22.

Practical details about running an orderly election, with a primary scheduled for May 15, seemed to be the furthest thing from the court’s mind. The court’s order gave legislators only until Feb. 9 to submit a new map to the state’s (Democratic) governor, who must sign off on any plan by Feb. 15. If either the legislative or executive branch misses the deadline, the court said it will draw a new map itself – on what basis is anybody’s guess. Considering that Pennsylvania’s Supreme Court justices are elected on partisan tickets and that the decision split 5-2 along party lines, it is safe to bet that the Democratic-dominated court expects to dabble in cartography.

A full opinion is supposed to be released at some unspecified future date. For now, the Pennsylvania court order treats Republican-drawn gerrymandering the way the late U.S. Supreme Court Justice Potter Stewart treated “hard-core pornography” in Jacobellis v. Ohio when he wrote, “I know it when I see it.” Without giving any reason or rationale, the Pennsylvania court said the statute creating the congressional district boundaries “clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.” (Both Republican justices, Justice Sally Updyke Mundy and Chief Justice Thomas G. Saylor, dissented.)

Making the state Constitution the “sole basis” of the ruling is a plain attempt to dissuade the U.S. Supreme Court from intervening, since state courts are ordinarily the arbiters of their own constitutions, barring a conflict with federal statute or constitutional requirements. And by not telling legislators exactly what made the old boundaries unconstitutional, the court leaves itself maximum flexibility to strike down any alternative the Legislature and governor might offer.

The ruling was handed down at a time when the U.S. Supreme Court is considering the degree to which partisan politics can be reflected in gerrymandering in two cases, out of Wisconsin and Maryland. And it was handed down with a hurried timetable that may kick the districting process back to the court itself. Even one of the Democrats on the court, Justice Max Baer, noted that “the likelihood for confusion, if not chaos, militates strongly against [his] colleagues’ admittedly admirable effort to correct the current map prior to the May 15, 2018 primary Election.” Current Pennsylvania candidates, who in some cases have already spent more than a year organizing and campaigning, have three months to campaign in new primary districts whose boundaries they can only guess for now.

A naked partisan ploy by a partisan court? Absolutely. An arrogation of legislative power by justices who only stand for election once every decade? Without a doubt. Unconstitutional as a matter of federal law? Nobody will know until the U.S. Supreme Court takes up the case, if it chooses to do so.

What we do know is that this is the logical if unfortunate conclusion of the injection of courts at all levels into the partisan politics of the executive and legislative branches. There were surely partisan cases even earlier – redistricting itself was famously at issue in Baker v. Carr in 1962, and in Colegrove v. Green about 15 years prior – but I trace this trend in its current form back to the U.S. Supreme Court’s intervention in the then-ongoing Florida recount in Bush v. Gore. It was so heavy-handed and valueless that the Court itself warned that it was “limited to the present circumstances,” although it has since been cited as precedent anyway.

In Colegrove, Justice Felix Frankfurter famously wrote of redistricting: “Courts ought not to enter this political thicket.” But the late Justice Antonin Scalia was, perhaps, a bit more memorable – and inarguably more succinct – when he told critics of Bush v. Gore to “get over it.

The country hasn’t gotten over it, however, and there is very little hint that we will get over it anytime soon. From Democrat-appointed federal district judges playing a role as part of the “resistance” against Trump administration policies they detest to Pennsylvania’s Supreme Court deciding to try to single-handedly alter the state’s political map and shape the makeup of its congressional delegation, judges across the country have followed the lead of Scalia and his fellow GOP appointees by making themselves not just the referees of political contests, but also the writers of the rules of the game.

We aren’t over it. Not by a long shot. And certainly not in Pennsylvania.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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