Arizona State Legislature v. Arizona Independent Redistricting Commission/Opinion of Justice Thomas
SUPREME COURT OF THE UNITED STATES
No. 13–1314
ARIZONA STATE LEGISLATURE, APPELLANT v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
[June 29, 2015]
Justice Thomas, with whom Justice Scalia joins, dissenting.
Reading today’s opinion, one would think the Court is a great defender of direct democracy in the States. As it reads “the Legislature” out of the Times, Places and Manner Clause, U. S. Const., Art. I, §4, the majority offers a paean to the ballot initiative. It speaks in glowing terms of the “characteristic of our federal system that States retain autonomy to establish their own governmental processes.” Ante, at 27. And it urges “[d]eference to state lawmaking” so that States may perform their vital function as “ ‘laboratories’ ” of democracy. Ante, at 28.
These sentiments are difficult to accept. The conduct of the Court in so many other cases reveals a different attitude toward the States in general and ballot initiatives in particular. Just last week, in the antithesis of deference to state lawmaking through direct democracy, the Court cast aside state laws across the country—many of which were enacted through ballot initiative—that reflected the traditional definition of marriage. See Obergefell v. Hodges, ante, p. ___.
This Court’s tradition of disdain for state ballot initiatives goes back quite a while. Two decades ago, it held unconstitutional an Arkansas ballot initiative imposing term limits on that State’s Members of Congress, finding “little significance” in the fact that such term limits were adopted by popular referendum. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 822, n. 32 (1995). One year later, it held unconstitutional a ballot initiative that would have prevented the enactment of laws under which “ ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships [would] constitute or otherwise be the basis of … any minority status, quota preferences, protected status or claim of discrimination.’ ” Romer v. Evans, 517 U. S. 620, 624 (1996). The Court neither gave deference to state lawmaking nor said anything about the virtues of direct democracy. It instead declared that the result of the ballot initiative was an aberration—that “[i]t is not within our constitutional tradition to enact laws of this sort.” Id., at 633. But if “constitutional tradition” is the measuring stick, then it is hard to understand how the Court condones a redistricting practice that was unheard of for nearly 200 years after the ratification of the Constitution and that conflicts with the express constitutional command that election laws “be prescribed in each State by the Legislature thereof,” Art. I, §4.
The Court’s lack of respect for ballot initiatives is evident not only in what it has done, but in what it has failed to do. Just this Term, the Court repeatedly refused to review cases in which the Courts of Appeals had set aside state laws passed through ballot initiative. See, e.g., County of Maricopa v. Lopez-Valenzuela, 575 U. S. ___ (2015) (Thomas, J., dissenting from denial of certiorari) (state constitutional amendment denying bail for illegal aliens arrested in certain circumstances); Herbert v. Kitchen, 574 U. S. ___ (2014) (state constitutional amendment retaining traditional definition of marriage); Smith v. Bishop, 574 U. S. ___ (2014) (same); Rainey v. Bostic, 574 U. S. ___ (2014) (same); Walker v. Wolf, 574 U. S. ___ (2014) (same). It did so despite warnings that its indifference to such cases would “only embolden the lower courts to reject state laws on questionable constitutional grounds.” Lopez-Valenzuela, supra, at ___ (slip op., at 2). And it refused to grant a stay pending appeal of a decision purporting to require the State of Alabama to issue marriage licenses to same-sex couples, even though Alabama’s licensing laws had not been challenged in that case. See Strange v. Searcy, 574 U. S. ___ (2015) (Thomas, J., dissenting from denial of application for stay). In each decision, the cheers for direct democracy were conspicuously absent.
Sometimes disapproval of ballot initiatives has been even more blatant. Just last Term, one dissenting opinion castigated the product of a state ballot initiative as “stymieing the right of racial minorities to participate in the political process.” Schuette v. BAMN, 572 U. S. ___, ___ (2014) (Sotomayor, J., joined by Ginsburg, J., dissenting) (slip op., at 1). It did not hail the ballot initiative as the result of a “State’s empowerment of its people,” ante, at 19, nor offer any deference to state lawmaking. Instead, it complained that “[t]he majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process … .” Schuette, 572 U. S., at ___ (slip op., at 4). And it criticized state ballot initiatives as biased against racial minorities because such minorities “face an especially uphill battle” in seeking the passage of such initiatives. Id., at ___ (slip op., at 20). How quickly the tune has changed.
And how striking that it changed here. The ballot initiative in this case, unlike those that the Court has previously treated so dismissively, was unusually democracy-reducing. It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee, thereby reducing democratic control over the process in the future. The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning.
I would dispense with the faux federalism and would instead treat the States in an evenhanded manner. That means applying the Constitution as written. Although the straightforward text of Article I, §4, prohibits redistricting by an unelected, independent commission, Article III limits our power to deciding cases or controversies. Because I agree with Justice Scalia that the Arizona Legislature lacks Article III standing to assert an institutional injury against another entity of state government, I would dismiss its suit. I respectfully dissent.