by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.
Political parties use the levers of power to consolidate their power. Sometimes, of course, they do so by advancing policies that their supporters prefer. At other times, they do so by changing the electoral environment. Partisan gerrymandering is a classic example. There are more subtle ways as well. For example, over the past generation the Republican Party has pursued a strategy of “defunding the left,” that is, denying financial resources to groups thought – probably accurately – to favor Democrats.
The gerrymandering example shows that partisan strategies to consolidate power can occur in legislatures. When that occurs, the courts’ role – from the party’s point of view – is simply to get out of the way, that is, to refuse to find unconstitutional the legislature’s decision. (When a party uses executive authority to consolidate power, the courts also have to be willing to find the executive action authorized by law. That was the partisan dimension of what was at stake in United States v. Texas, the case challenging the Obama administration’s policy on removal of some immigrants not lawfully present in the United States.)
Courts can play a more active role in partisan power consolidation. For example, the Roberts Court’s decisions restricting class actions and favoring arbitration – nominally interpretations of a federal statute and the rules of civil procedure – can be understood as part of the strategy of defunding the left, with the targets being plaintiffs’ side trial lawyers. (On the state level, this is made clear in conservative campaigns for state supreme court positions.) And, even more aggressively, courts can find that some party-favoring policy is constitutionally required.
That was the strategy the conservative plaintiffs pursued in Evenwel v. Abbott. The case questioned the proper population basis for drawing district lines to satisfy the “one person one vote” rule. The candidates were total population and the population of eligible voters. In Texas the “eligible voters” rule would favor Republicans by eliminating from the apportionment base young people and, more important, noncitizens. The Court rejected the Republicans’ claim, holding that total population was a permissible basis for apportionment. But, it refused to address the position taken by Texas’s Republican Solicitor General and opposed by the U.S. Solicitor General, that states had legislative discretion to choose either total population or eligible voters as the basis for apportionment. (Texas’s litigation strategy was to defend what the Texas legislature had done, but leave it open for the Republican legislature to change the apportionment base if it wanted to.)