Prior to the start of their 2019 summer recess, the nine Justices on the Supreme Court of the United States released the last of their 72 merit opinions. The opinions both affirmed and defied ideological stereotype.
SCOTUSblog’s crackerjack Final Stat Pack sorts and analyzes the rulings. Of the 72 opinions, 28 (39%) were unanimous. On 20 occasions (28%), the Court split 5-4, but the divisions failed to toe the expected party line. Eight of those splits resulted from Justices Roberts, Thomas, Alito, Gorsuch or Kavanagh crossing the suppositious aisle to form out-of-the-blue 5-4 majorities with the four liberal justices.
Everyone should read at least one opinion from each term. But which one?
The runners-up of my choices of opinions to read from the 2018-2019 term are:
1. Weyerhaeuser v. U.S. Fish and Wildlife Service is a digestible opinion concerning the dusky gopher frog that “secretes a bitter, milky substance to deter would-be diners.” Though found only in Mississippi, the federal agency charged with protecting the endangered amphibians designated privately-owned land in Louisiana as a “critical habitat.” The warted critter had been spotted there as recently as, well, 1965. In an 8-0 ruling for the aggrieved landowner, Chief Justice Roberts delivered a basic grammar lesson: “According to the ordinary understanding of how adjectives work, a ‘critical habitat’ must also be a ‘habitat.’” Ouch.
2. Timbs v. Indiana reaffirms the elasticity of the 14th Amendment. The Starsky & Hutch-ish facts involve a drug pusher pushing heroin on an undercover narc and the seizure of a pricey Land Rover. Think excessive fine and the 8th Amendment. But the Indiana Supreme Court judiciously observed the “Supreme Court has never held that States are subject to the Excessive Fines Clause.” Smugly, in a 9-0 disquisition authored by Justice Notorious RBG, the Court announced (for the first time) that, of course, the 8th Amendment applied to the States through the 14th Amendment. Don your coif before reading this opinion as the Magna Carta garners twelve mentions.
3. Herrera v Wyoming tracks a Montana hunter who crossed into Wyoming and, out of season and sans a state hunting license, slaughtered an elk. The poacher argued that his membership in the Crow Tribe (in Montana) gave him hunting rights (in Wyoming) under an 1868 treaty. Citing a seemingly on-point 1896 U.S. Supreme Court ruling, the Wyoming state appellate court held that Wyoming’s 1890 statehood negated any such treaty rights. In a 5-4 opinion by Justice Sotomayor, with Gorsuch joining the four liberal justices, the Court performed a precedent-defying Indian dance to preserve the treaty and exonerate the hunter.
4. Franchise Tax Board of California v. Hyatt may be my favorite abortion case because it is not about abortion and doesn’t mention Roe v. Wade. Justice Thomas, speaking for the five conservatives in a tax collection case, dissed an injudicious 1979 precedent on state sovereignty: “Stare decisis does not compel continued adherence to this erroneous precedent.” Justice Breyer, on behalf of the four liberals, delivered the minority’s dissent and a harbinger tagline: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Opinions on Double Jeopardy, the Peace Cross, Regulatory Takings, the Dormant Commerce Clause, Scandalous Trademarks, Tennessee Wine, and the Census all piqued my interest but failed to make the final cut.
The One Opinion to Read from the 2018-2019 Term
My choice of one opinion to read from the term is … Rucho v. Common Clause. Gerrymandering? Yes, but hold on. The gerrymandering issue is a sideshow for something bigger.
Rucho involves outrageously partisan gerrymandered congressional districting maps in two states: amusingly, the maps in Maryland were rigged by the Democrats, while the Republicans put the fix on the North Carolina maps.
The aggrieved parties (Democrats in N.C. and Republicans in Md.) claimed violations of multiple constitutional provisions, including even the First Amendment. The two soon-to-be-rebuffed U.S. District Courts found clear constitutional violations.
THE SUPREME COURT RULING
In a far-reaching 5-4 ruling, with the conservatives outvoting the liberals, the Supremes proclaimed the federal judiciary lacked jurisdiction to hear a PARTISAN gerrymandering claim, no matter how politically offensive the facts.
Justice Roberts recited the long history of gerrymandering, including how, in 1812, Mass. Governor and soon-to-be U.S. Vice President Elbridge GERRY approved a misshaped district that resembled a salaMANDER.
The Court noted the “Framers addressed the election of Representatives to Congress in the Elections Clause” of the Constitution and “assign[ed] to state legislatures the power to prescribe the Time, Place and Manner of Holding Elections,” while reserving unto Congress the power to “make or alter” such proscriptions.
Channeling the late Justice Scalia, the Chief quoted from a 2004 gerrymandering opinion: “‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’  Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.”
The Court suggested aggrieved partisans seek amendment of state laws, state constitutions, and federal law – as contemplated by the U.S. Constitution. The Court retained rights to hear select election cases, such as “one man, one vote” controversies and even RACIAL gerrymandering claims.
Justice Kagan expressed her considerable displeasure in a blistering dissent, parts of which she read from the bench.
The Takeaway and Wrap-Up
Rucho is about judicial restraint and the unwillingness of the U.S. Supreme Court to allow the federal judiciary to overstep it bounds. While perhaps unappreciated by the losers, such deference respects the roles of the co-equal branches of the federal government and the sovereign states.
This case serves as a timely reminder that the U.S. Constitution neither protects all that is good nor prohibits all that is bad. And that the federal court system is not a one-stop shop to right all perceived wrongs.
» BEN WILLIAMS, the author, is a Mississippi attorney. Email Ben at Ben39157@gmail.com. Ford Williams, the artist, is a senior at Savannah College of Art & Design (SCAD) in Georgia.
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