SMACKDOWN BETWEEN GINSBURG AND GORSUCH | Chief Roberts, You’re So Vain | Justices May Be Split Over SCOTUS Reforms

October 4, 2017

Despite all the hubbub surrounding the gerrymandering case yesterday, the justices also heard a big case about whether immigrants facing deportation are entitled to have their detentions, which can stretch for years, reviewed by a judge. Lawyers for immigrants argued that the government’s practice of keeping immigrants in detention facilities indefinitely, without independent reviews of whether there are grounds for keeping them there, violates their due process rights.

Live audio was not provided for yesterday’s partisan gerrymandering case which promises to be one of the most significant SCOTUS decisions in a decade. But the letter Counselor to the Chief Justice JEFFREY MINEAR sent to four members of Congress rejecting their live audio request implied a split among justices over opening up the courtroom to enhanced broadcast access. Read the letter and see what Fix the Court’s GABE ROTH has to say about the hint of some justices being open to reform.

“CHIEF JUSTICE JOHN ROBERTS warned Tuesday that the Supreme Court’s ‘status and integrity’ could be jeopardized if a majority of the justices declare that there is a constitutional limit to partisan gerrymandering. At the same time, the court’s four liberal justices warned that failing to act poses a threat to democracy.” NPR’s Nina Totenberg reviews Gill v. Whitford and the question of “how much is too much” when it comes to partisan gerrymandering in this country.

Adam Liptak and Michael D. Shear with The New York Times report that JUSTICE ANTHONY KENNEDY is the key to the partisan gerrymandering case. Long troubled by the issue, the duo writes, “He has never found a satisfactory way to determine when voting maps are so warped by politics that they cross a constitutional line.” That may have all changed yesterday. “After spirited Supreme Court arguments on Tuesday, there was reason to think Justice Kennedy may be ready to join the court’s more liberal members in a groundbreaking decision that could reshape American democracy by letting courts determine when lawmakers have gone too far.”

In a joint statement released Tuesday, SENATORS JOHN MCCAIN and SHELDON WHITEHOUSE doubled down in their bipartisan effort to encourage SCOTUS to create a new standard for determining the constitutionality of partisan gerrymandering. The statement said, “The Court can clean up a cause of America’s crisis in confidence in our democracy, protect our elections from wildly partisan ‘bulk’ gerrymandering, and return control of our elections to the people.” Jennifer Calfas with TIME reports.

Following up on his tweet yesterday, Jeffrey Toobin writes in The New Yorkerabout a significant exchange that took place between JUSTICE RUTH BADER GINSBURG and SCOTUS newbie, JUSTICE NEIL GORSUCH. It was towards the end of arguments in Gill v. Whitford when Gorsuch started lecturing his colleagues about the text of the Constitution and Notorious RBG decided to clap back. Toobin writes, “Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, ‘Where did “one person, one vote” come from?’ There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)” Boy, bye.

The Editorial Board of The Wall Street Journal weighs in on yesterday’s gerrymandering case uses a quote from CHIEF JUSTICE JOHN ROBERTS to make a point. The Ed Board: “Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.” During argument Tuesday, the chief justice had said, “The 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.”

Joan Biskupic with CNN reports that during arguments Tuesday, CHIEF JUSTICE JOHN ROBERTS revealed what matters most to him: how things work and what people think about him, the court and its decisions. So throw on some Carly Simon and read the whole story to get a sense of why the chief is so worried about image when it comes to the highest court in the land.

“Nearly 14 years ago, PAUL SMITH, former chairman of Jenner & Block’s appellate and U.S. Supreme Court practice, unsuccessfully tried to persuade the high court to limit partisan gerrymanders. On Tuesday, he had a second, and what some believe, last chance to convince the justices that there is a way to do it.” Marcia Coyle with The National Law Journal reports on this supreme second chance for Mr. Paul.