John Roberts is Stupid

Image via Bronx Banter.

Hahaha. On Ginsburg's beautiful opinion in the case of Arizona Legislature v. Arizona Independent Redistricting Commission, holding that a popular referendum can require a state to get rid of gerrymandering in its decennial redistricting by means of an independent commission, in spite of the constitutional stipulation that

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, §4, cl. 1. R

The gerrymander-loving chief justice, Smilin' Jack Roberts, dissenting, decides to wax sarcastic, as quoted at the Political Animal, and extracted at slightly greater length from the opinion itself:

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. 

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

Sadly, no. Or happily, as a matter of fact. The proponents of direct senatorial elections in the early 20th century understood quite clearly that they could use "the legislature" to mean "the people". That's why direct election of senators was already being practiced in 29 of the 48 states by the time the 17th Amendment passed Congress in 1912, either using the newfangled technique of the primary election to nominate a senator that the state representative body was required to ratify, or by a simple popular referendum as pioneered by Oregon in 1908 and Nebraska shortly thereafter.

What they needed a constitutional amendment for was to impose it on the other 19. In the same way as we'd need a constitutional amendment to impose redistricting commissions on all 50 states, but the people of Arizona are totally entitled to get one for themselves, as Ginsburg properly found.

It's a big part of the story of Progressivism, how the people of the various states (starting with Oregon again in 1902) began learning techniques for overcoming the torpor and corruption of the state legislatures by taking power into their own hands through the use of ballot initiatives, referenda, and recalls, and the primary election system, to the constant howling of conservatives then as now complaining that such beastly innovations were unconstitutional invitations to mob rule. Eventually, of course, the conservatives would learn to use such tricks themselves, to make it impossible for states to raise progressive taxes or legalize same-sex marriage or what have you, but that's another story. Another story that is coming, I'm pleased to report, to an end.

In the meantime, let us savor the opportunity to thumb our noses at the chief justice, totally wrong on this and showing that if there's a chump in the house it's him. Chump!