“What chumps!”
— Chief Justice John G. Roberts Jr., June 29, 2015
Roberts’s intellectual complexity does not prevent him from expressing himself pithily, as he did with those words when dissenting in a case from Arizona. Joined by Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., Roberts’s dissent should somewhat mollify conservatives who are dismayed about his interpretive ingenuity four days earlier in writing the opinion that saved the Affordable Care Act. Furthermore, they, including this columnist, may have missed a wrinkle in Roberts’s ACA opinion that will serve conservatives’ long-term interests.
To end gerrymanders, Arizona voters, by referendum, amended the state’s constitution to strip the legislature of its control of redistricting. They created an Independent Redistricting Commission (IRC) on which no member of the legislature may serve.
However, the U.S. Constitution’s elections clause says, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” When Arizona’s legislature sued, the IRC’s implausible response was: The Constitution’s Framers did not use the word “legislature” as it was then and still is used, to denote the representative bodies that make states’ laws. Rather, the IRC said the Framers used “legislature” eccentrically, to mean any process, such as a referendum, that creates any entity, such as the IRC, that produces binding edicts.
Implausibility is not an insurmountable barrier to persuading a Supreme Court majority, and last week five justices accepted the IRC’s argument. Ruth Bader Ginsburg, joined by Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, said: There is “no suggestion” that when the Framers stipulated that the manner of a state’s elections should be determined by “the legislature thereof” the Framers necessarily meant “the state’s representative body.”
This detonated Roberts, who began his dissent by saying: The reformers who waged “an arduous, decades-long campaign” to achieve ratification in 1913 of the 17th Amendment establishing popular election of U.S. senators could have saved themselves the trouble. They could have adopted what Roberts calls the “magic trick” the majority performed regarding Arizona. What chumps the reformers were for not simply asserting this: Sure, the Framers stipulated that two senators from each state were to be chosen “by the legislature thereof,” but the Framers really meant “by the people.”
