On Thursday morning, CNN Newsroom dedicated nearly an entire hour to discussing two recent Supreme Court decisions on the 2020 census and on a gerrymandering case. The panel, hosted by CNN anchor Poppy Harlow, used that time to bash Chief Justice John Roberts and the rest of the conservative majority.
The high court handed down a simple 5-4 decision stating that the Court was above politics, and that it’s not their business how districts are drawn. This infuriated the panel, and particularly struck a nerve Elizabeth Wydra, president of the progressive Constitutional Accountability Center:
[I]t happens on both sides but as Jeffrey said right now, it is definitely being used more by the Republican Party and as he said, if Chief Justice Roberts and his court decide not to decide, that is really going to help the fate – the future fate of the Republican Party, as the demographics change. You know, this goes hand in hand with the census case because we're seeing ways that the Republican Party is trying to change the system, so they can still stay ahead even with the changes in our country.
Jeffrey Toobin continued Wydra’s narrative moments later in the show:
Two points, one, huge victory for the Republican Party here because it's the Republicans who control most of these states, who control Ohio, who control Florida, who will be redistricting following the 2020 census and now this is a green light to jam all the Democrats into a handful of districts and put the Republicans in control of all the rest of them.
But wait -- the two cases the court was considering were a Republican districting plan in North Carolina and....a Democrat districting plan in Maryland. So it's harder to push a Republican conspiracy theory when they ruled in favor of Maryland Democrats.
Chief Justice John Roberts in no way made a statement to Republicans that they should begin rigging elections to cut Democrats out of seats. He, as well as the other conservative justices, made a decision to not overstep their constitutional duty and dictate how legislators does their jobs.
The final panelist was Ron Brownstein, a senior editor for The Atlantic and a CNN senior political analyst, who vented his rage with a rant on “Republican justices”:
It's not as though they are a bulwark against racial discrimination in electoral processes, and are only kind of, you know, allowing partisan manipulation to go forward. On both fronts, they are rolling back the ability to constrain this kind of behavior, and it's a pretty consistent pattern. I quoted someone, you know, in my story this week noting that on these cases, you begin to get the evidence begins to accumulate what the five Republican justices on the court are doing is building a perpetual motion machine. Releasing a series of rulings over a period of years that benefit the Republican electoral prospects and thus make it more likely it will be Republicans picking the justices.
Has Brownstein forgotten Roberts argues that the Supreme Court is above party affiliation? The day before this segment ran, Justice Neil Gorsuch sided with the liberal justices in order to uphold his view of the Constitution. The Court isn’t partisan as much as segmented into political ideologies, and sometimes the “conservatives” and the “liberals” find themselves in the same camp, despite whatever the political parties may think.
The larger mystery of this segment was the straw man the panel built out of Chief Justice Roberts. They made it seem as if he were some sort of hard right conservative on par with Justice Thomas or the late Justice Scalia. In truth, most conservatives view him as a moderate. He’s far from the “Republican justice” that this panel seems to believe that President George W. Bush appointed to do the Party’s bidding for decades to come.
Here is the relevant transcript from the Thursday morning airing of CNN Newsroom:
POPPY HARLOW: Ruth Bader Ginsburg has warned about that division, potentially more 5-4 decisions to come at the end of the term. We'll see what these counts are. Jeffrey Toobin, I learned that the Supreme Court has just issued the ruling on partisan gerrymandering. Of course, this is significant for a number of reasons, including that the court has never settled on standard or a test on what is partisan gerrymandering. You’ve got two cases here Toobin, as we wait for the ruling to come down, you’ve got North Carolina case brought by the Democrats and the Maryland case brought by the Republicans. Explain to people what we're about to find out as we await the decision.
JEFFREY TOOBIN: This is another case where the interest of the Republican Party in particular are at stake because especially after the 2010 census, when the Republicans controlled states like Florida, Wisconsin, Ohio, Pennsylvania, which some of which they don't control anymore, they drew the lines so that Republicans, even though they were very evenly divided in terms of overall voters, overwhelmingly controlled the state legislative districts. And the question in this case, and we'll know the answer soon is, is that constitutional? Is it constitutional to draw district lines that dramatically advantage one party or the other? The Maryland case, the Democrats did it, but the Democrats don't control as many states as the Republicans. So the question which the court, as you point out, has never clearly resolved is, we know it's unlawful to discriminate on the basis of race in drawing district lines but is it constitutional to draw lines based on partisan affiliation? That's the issue in this case.
HARLOW: It's a First Amendment question, equal protection question. But Jeffrey Toobin, they may not, the high court, right, they may not decide to finally set a standard or a test for that, right, they may punt it back and say, this is better decided by the political branches of government. Is that right?
TOOBIN: Well, but that's a decision. If --
HARLOW: Fair enough.
TOOBIN: If the court says, we're not getting involved, we're going to leave it to the legislature, the legislators will continue partisan gerrymandering. So, you know, not deciding is deciding.
HARLOW: Elizabeth, to you, why should every American care about the decision that is about to come down on this front, right? Because it comes down to state legislatures, et cetera.
ELIZABETH WYDRA (Constitutional Accountability Center): I mean, it is a basic American principle that the voters choose their elected representatives and not the other way around and if the Supreme Court does not step in to say whether or not partisan gerrymandering is unconstitutional, then they are really turning a blind eye to that because we know that it happens, it happens on both sides but as Jeffrey said right now, it is definitely being used more by the Republican Party and as he said, if Chief Justice Roberts and his court decide not to decide, that is really going to help the fate – the future fate of the Republican Party, as the demographics change. You know, this goes hand in hand with the census case because we're seeing ways that the Republican Party is trying to change the system, so they can still stay ahead even with the changes in our country.
HARLOW: All right, let me jump in, Jessica Schneider has the ruling for us. Jessica, what did the Justices decide?
JESSICA SCHNEIDER: Well, Poppy, this may be the exact example of what Justice Ruth Bader Ginsburg was referring to a few weeks ago when she said to expect closely divided decisions in closely watched cases. This is the case involving partisan gerrymandering. This was a 5-4 decision written by the Chief Justice John Roberts and it says that the courts have to stay out of these questions of whether maps are extremely partisan gerrymandering. Basically, the Court is saying here that the courts have no role to play and that means that all of these maps that challengers have said were partisan gerrymandered, the politicians went too far in drawing these lines for strictly political gain, the court is saying, courts cannot rule on this. This is strictly within the purview of Congress. So it's quite a stark ruling here 5-4, all five conservative justices taking this stance. The courts have no role to play here. The issue here is that the Chief Justice writes in this majority opinion that this is strictly a political question, that the courts have no role in deciding whether or not politicians can draw these maps and how they can draw them. Lower courts here have thrown out these maps. This was the case involving maps in North Carolina as well as congressional district in Maryland and the lower courts, the federal judges had thrown out these maps. They had established a new standard and the Supreme Court today going in the complete opposite direction. Not establishing a standard and instead saying that the Supreme Court and any other court has no role to play. They cannot decide whether or not these maps that challengers accuse politicians of partisan gerrymandering, the courts cannot step in. They cannot decide and really, this throws it back to Congress to make any determination as to whether or not any sort of standard should be set, but really, the practical effect of this is that now, it gives free reign to politicians to take control of state legislatures to draw the lines, how they see fit and any court challenge cannot be mounted because the Supreme Court is saying this is purely a political question and that the courts should not step in here, Poppy.
HARLOW: Jeffrey Toobin, that's exactly what you were just talking about, to punt it back to Congress is making a decision, this opinion written by the Chief Justice John Roberts who said just back in February, quote, people need to know that we are not doing politics. He is now decided there is no role for the courts in deciding how these maps are drawn and as Jessica said, right down the line there. The five conservative justices siding with Chief Justice John Roberts who wrote the majority opinion.
TOOBIN: Two points, one, huge victory for the Republican Party here because it's the Republicans who control most of these states, who control Ohio, who control Florida, who will be redistricting following the 2020 census and now this is a green light to jam all the Democrats into a handful of districts and put the Republicans in control of all the rest of them. Second point, this is why, in a very significant way, the country is so divided along partisan lines. That what we have now are state legislative districts and congressional districts where it's clear a Democrat is going to win in some seats and clear a Republican is going to win in the other. So that the only important election in those districts are the primaries. Meaning, moderates need not apply. That you are going to get more conservative Republicans and more liberal Democrats in state legislatures and in the houses of congress. This decision is a major contributor to the polarized political society in which we live and it's only going to get more polarized because of the green light that Chief Justice Roberts gave to state legislatures today.
HARLOW: This is the final word Ron Brownstein, so a more divided America now going forward?
RON BROWNSTEIN (CNN Senior Political Analyst): Absolutely, look, this is what I was talking about before. For all that John Roberts talks about the court not wanting to seem political, when it comes to setting the rules of politics, he has repeatedly engineered these 5-4 decisions with five Republican-appointed justices, not just conservatives, outvoting four Democratic-appointed justices to set the rules of politics, from Citizens United to Shelby County to this, in a way that benefits Republicans and it might go even further because there is a countervailing movement in the states, we’re up to about 20 states now, that have voted usually by ballot initiative to redistrict through an independent commission rather than letting the legislature draw these kinds of lines, and there was a case, as Jeffrey knows, a few years ago where John Roberts voted with three other Republicans appointed -- three other Republican-appointed justices -- to invalidate the use of those independent commissions. Since Anthony Kennedy voted with the Democratic-appointed justices, the independent commissions, it was a case involving Arizona, were allowed to stand. But it's pretty clear that John Roberts, I think, would vote to eliminate that and now with Brett Kavanaugh on the court, it's not clear that he will allow even those kinds of independent commissions to draw the lines going forward since he voted the other way, saying they were unconstitutional, and you know, because I think this ruling will spur that kind of reform or at least an effort at that kind of reform in most states because as Jeff said, it is an absolute green light for states to be as aggressive as they want to be in redistricting and that is something the Republican Party employed to the max after the 2010 landslide that they had and the redistricting that followed.
HARLOW: Elizabeth, we heard a foreshadowing of a decision like this from Justice Ruth Bader Ginsburg just a few weeks ago who compared what she called the huge importance of the census decision, which we'll get to in a few moments, to the fight over the travel ban and talked about the concern over divisions like this, 5-4 divisions, saying, "Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold." And that's exactly what happened here.
WYDRA: Right, and you know, it seems like a division ideologically but it also I think is a division in who has their head in the sand and who doesn't. You know, like we saw last year with the Muslim ban case. The conservative majority went forward as this was any other presidential administration that President Trump did not have his tweets saying that the Muslim ban was intended to attack Muslims and here I think we have first with this partisan gerrymandering decision Justice Roberts, Chief Justice Roberts trying to make it seem like he's not doing politics, but in reality, he's absolutely doing politics because as we've just heard from both Ron and Jeffrey, this will only make polarization worse and frankly, as a constitutional lawyer, I'm deeply disappointed that the court did not do its job in our constitutional system and apply the Constitution and the law. You have these plaintiffs come into the court saying, "Our First Amendment rights are being violated, our equal protection rights are being violated because we're being marginalized based on our political affiliation and being packed into these districts," and the Court basically denied their ability to come into the Supreme Court and have the Constitution enforced and that's the Supreme Court's job and I don't think they did it in this case.
HARLOW: And Jeffrey, I think you brought up a really salient and important point at the top there and it's about the decision made previously on racial gerrymandering and what's allowed there, versus political. So explain why the court decided one way in racial gerrymandering and this way on political.
TOOBIN: Well, the Constitution says there can be no racial discrimination.
TOOBIN: But as Chief Justice Roberts points out, the Constitution says nothing about political discrimination. Now, the fact is, in the real world, since African-Americans are overwhelmingly Democratic, the line between racial discrimination and political discrimination is almost impossible to draw and Democrats have been pointing out for years that, in fact, political discrimination often is racial discrimination. But Chief Justice Roberts was not interested in that argument. He said when Democrats, you know, draw lines to benefit Democrats and Republicans draw district lines to benefit Republicans, that's not the court's business. The Constitution has nothing to say about that. That is simply a political question, not a legal question, and we're going to stay out of it. But the bright line that Chief Justice Roberts draws in this opinion between racial discrimination, which is illegal, and political discrimination, which is legal now, that line may not exist in the real world.
BROWNSTEIN: Well --
HARLOW: Go ahead.
BROWNSTEIN: Last year in the Texas case, as Jeffrey knows, they narrowed the use of racial discrimination to challenge district lines, I think Abbott v Perez was the name of the case. And of course, Shelby County, the landmark, probably one of the two or three most significant decisions of the Roberts Court, eliminated the preclearance provisions of the Voting Rights Act which were designed to prevent racial discrimination. It's not as though they are a bulwark against racial discrimination in electoral processes, and are only kind of, you know, allowing partisan manipulation to go forward. On both fronts, they are rolling back the ability to constrain this kind of behavior, and it's a pretty consistent pattern. I quoted someone, you know, in my story this week noting that on these cases, you begin to get the evidence begins to accumulate what the five Republican justices on the court are doing is building a perpetual motion machine. Releasing a series of rulings over a period of years that benefit the Republican electoral prospects and thus make it more likely it will be Republicans picking the justices