“Words mean what they say,” I wrote in my Washington Examiner column one week ago. But, as I added, not necessarily to a majority of justices of the Supreme Court. The targets of my column were the majority opinions in King v. Burwell and Texas Department of Community Affairs v. The Inclusive Communities Project.
In King v. Burwell, Chief Justice Roberts interpreted the words “established by the state” in the Patient Protection and Affordable Care Act (aka Obamacare) as meaning “established by the state or the federal government,” even though the law itself defines “state” as the 50 states and the District of Columbia.
In the case of Inclusive Communities, Justice Kennedy read the Fair Housing Act of 1968 as not only prohibiting intentional racial discrimination (which it does in so many words) but also prohibiting acts that have a “disparate impact” on persons of different races (which it says nothing about).
The last day on which the court announced decisions gave us another such case, Arizona State Legislature v. Arizona Independent Redistricting Commission. Here the majority opinion, written by Justice Ginsburg, interprets the words “the legislature” in Article 1, Section 4 of the Constitution to mean “the legislature or an independent commission approved by the voters in a referendum authorized by the legislature.”
Justice Ginsburg, as capable of fancy verbal footwork as the chief justice, argues that they amount to the same thing, since the referendum was authorized by the legislature and a majority of voters voted to establish the commission. She added (though it is not clear why this is relevant to assessing semantics) that establishing the commission would eliminate the scourge of partisan district-drawing.
Now I have to admit, perhaps in disagreement with Justice Ginsburg, that the issue at stake in Arizona is far less consequential than those in King v. Burwell or Inclusive Communities.
A contrary decision in King v. Burwell would have left some 6 million people without health insurance subsidies and would have triggered a battle between the Republican Congress and the Obama administration over how to repair Obamacare.
And Justice Kennedy’s decision in Inclusive Communities gives a green light to the Obama administration’s Affirmatively Furthering Fair Housing program, under which the Housing and Urban Development hopes to override municipal zoning laws and require suburban cities and towns to build or permit the building of low- and middle-income housing.
In both cases the Democratic party may be on the defensive, since large majorities of voters favor at least some modification of Obamacare and since initial polling suggests that even larger majorities would oppose AFFH social engineering.
On the other hand, if the court had gone the other way in Arizona, the Republican Arizona legislature would have to redraw the boundaries of Arizona’s nine congressional districts. The partisan effect would be minor at most.
But Justice Ginsburg seems to be taken with the proposition that many of the nation’s political woes — polarization, gridlock — are the result of partisan redistricting. It may have crossed her mind, as it has those of others, that Republicans have had the advantage in partisan redistricting in the cycles following the 2000 and 2010 Censuses.
That advantage is overstated. Republicans after 2010 controlled redistricting in Texas, Florida, Pennsylvania, Ohio, Michigan, Georgia and North Carolina (138 House seats). But Democrats controlled redistricting in Illinois and Maryland and, by successfully gaming purportedly nonpartisan redistricting commissions, in California and Arizona (88 House seats).
The partisanship of the Arizona plan was particularly egregious. In 2012 Arizonans voted 52 to 43 percent for Republican House candidates over Democrats, but Democrats won five of the nine House seats. In 2014 they voted 56 to 39 percent Republican, and Republicans won a fifth seat — by the narrowest margin in the country.
A partisan Republican plan would give Republicans one more seat or maybe two — but at the risk of losing a seat or two in a Democratic year. Remember that despite Republicans’ redistricting advantage after the 2000 Census, Democrats won majorities in the House in 2006 and 2008. If opinion changes, redistricting doesn’t matter.
The fact is that supposedly nonpartisan redistricting commissions are not going to get rid of polarization (which results from voter attitudes) or gridlock (which results from the executive’s low negotiating skills).
You might argue that it’s worth denying words mean what they say when Obamacare or AFFH is at stake. But for redistricting commissions, why bother?