Rucho v. Common Cause (18-422)

argument 18-422

Rucho v. Common Cause

Supreme Court of the United States 1h 11m 7 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the Supreme Court’s central question in Rucho v. Common Cause?

John G. Roberts 0:00

We'll hear argument first this morning in Case 18-422,

Jeffrey D. Clement 0:03

Rucho v. Common Cause. Mr. Clement? Mr. Chief Justice, and may it please the Court, this Court has repeatedly failed to identify a justiciable standard for partisan gerrymandering claims. The cause of that failure is not a lack of judicial imagination or a lack of claims that the particular map before the Court was the most extreme ever. Rather, the root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors. The framers consciously chose to give the primary authority to state legislatures and then to police the possibility that state legislatures, which the framers knew to be partisan institutions, would engage in too much partisanship.

Jeffrey D. Clement 0:52

The framers chose a structural solution by

Elena Kagan 0:54

giving the Federal

Jeffrey D. Clement 0:55

Congress supervisory authority.

Elena Kagan 0:57

Mr. Clement, that ship has sailed in Baker v. Carr. Once we decided the one person, one vote concept, we went pretty much in all of our jurisprudence saying that certain acts by the legislature are unconstitutional, including race discrimination and others. It can't be that simply because the Constitution says that a particular act is in the hands of one branch of government, that that deprives the courts of reviewing whether that action is constitutional or not.

Jeffrey D. Clement 1:39

Well, Justice Sotomayor, I suppose the question of whether that ship sailed in Baker v. Carr is one way of presenting the question before the Court today. And I would submit that you don't have a one-size-fits-all solution for just disability. And I don't think Baker v. Carr supports that proposition. Indeed, I took the central lesson of Baker v. Carr to be that the same claim, essentially, when presented as an equal protection claim, was justiciable when the same claim presented as a Republican Guarantee Clause claim was not justiciable. Mr.

Ruth Bader Ginsburg 2:11

Clement, does one person have one vote that counts equally, which I take it to be? the message of those cases now well accepted. Does one person have one vote that counts equally with others if the impact of her vote is reduced based on her party affiliation?

Jeffrey D. Clement 2:36

The answer to that question, Justice Ginsburg, is yes. You still have an equal right to vote as an individual. And what the parties on the other side are really complaining of here is not a purely individual injury. What they're complaining of is that they're grouped in a district with either too many people who agree with them or too few people who agree with them, and therefore their vote is sort of diluted in some way. And I don't think that is, in the first place, an individual legally cognizable interest. So I think they have a standing problem. But even if they get over the standing problem, then I don't think that's a justiciable injury. And I would say more broadly, you know, lots and lots of voters live in a district where

Jeffrey D. Clement 3:19

either because of geography or because of state action, they're not going to have their preferred candidate elected. Indeed, I'd go further and say most Americans don't get their preferred candidate elected because they have to choose from the candidates that are before them. And maybe based on the district they live in, it tends to give them a relatively liberal Democrat or a relatively conservative Republican when really what they'd prefer is somebody down the middle. And none of those things, I think, are things that you're constitutionally entitled to.

John G. Roberts 3:50

Mr. Clement, would your position require us to overrule Davis versus Bandemere?

Jeffrey D. Clement 3:55

I think, Mr. Chief Justice, it would depend on which way you decided the case. I think if you decided the case — Well, if we decided it in your favor, would it require us to overrule? And it would still depend, Your Honor, on whether you decided it in our favor on standing grounds or on just disability grounds. If you decided it in our favor on just disability grounds, I think you would have to overrule the Bandemere case. I think the Bandemere case is a case that well deserves overruling, and I'm happy to discuss why that is the case.