SCOTUS’ Pursuit of Red Herrings and MacGuffins

Image result for school separate but equalThe notions of red herrings and MacGuffins represent close relatives in literary plot constructs. A red herring is defined as a misleading clue diverting attention from the central point. A MacGuffin, on the other hand, is an object (think The Maltese Falcon), device, or event of little or no intrinsic importance but motivating players. With respect to the track record of the Supreme Court (SCOTUS) on political partisan gerrymandering, the pursuit of a MacGuffin spurred by a red herring may be said to have led the Court into a legal tautology, unable to untangle the mystery of an infamous practice.

In the early 1960s, the high court concluded that gerrymandering was subject to the court’s authority, violated the Equal Protection clause of the 14th Amendment, and that the purpose of electoral districting was to create fair and effective representation for all citizens (one person, one vote principle). In 1986 (Davis v. Bandemer), SCOTUS ruled again that partisan gerrymandering is within the Court’s scope of authority (i.e., justiciable) but requires a rationale standard upon which to base intervention. Although some justices have used language to conclude that gerrymandering is inherently nonjusticiable, Justice Anthony Kennedy in 2004 (Vieth v. Jubelier) left the door open for a potentially manageable standard in the future. Thus began in earnest the pursuit of the mysterious MacGuffin and misdirection by red herring.

It is conventional wisdom to attribute the decision in Brown v. Board of Education (1954) to the overturning of separate but equal. In fact, the doctrine was actually “equal but separate,” originating from legislation in Florida and Louisiana applicable to train car accommodations and, later, applied to most public facilities, including schools. This may seem a nuanced distinction but is nonetheless a substantially different construct, both in logic and judicial inquiry. The Earl Warren court at that time was consciously clear-sighted in that the public school system in the United States represented one of the nation’s most crucial, vital, and important functions of government to be considered “in light of its full development and its present place in American life throughout the United States.”

It was observable and palpable that separate schools were the norm and not at all equal. Given the breadth and depth of the separateness, the Court concluded that “[s]eparate educational facilities are inherently unequal.”  The Court further concluded that the 14th Amendment was not intended to abolish segregation. Rather, the Court inquired: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? Famously, the Court concluded that it did. The defendant school facilities did not assert that separate schools were of benefit to society or the students.

Brown did not engage in analysis of concrete evidence to reach its conclusion. Instead, it relied upon reason and moral force to scuttle equal but separate. Unlike the gerrymander cases, SCOTUS did not seek or rely upon a judicially manageable standard. This is not unusual. As one commentator observed, SCOTUS consistently employs “court-created standards–such as those determining when someone has acted with racially discriminatory intent or when a monopolist created ‘substantially anticompetitive effects.’” Brown defendants did not maintain that equal but separate offered better educational opportunity for all students regardless of color.

At times, partisan gerrymandering for political purposes may also be racially animated but, in its partisan form, it is somewhat more subtle. There are no litigation advocates of gerrymandering–only defenders. No defender of gerrymandering argues that its effect is to improve democracy or benefit voters or representative democracy. Defenders of the practice argue simply that such separating distinctions are not unlawful and therefore not unconstitutional. Separating voters into districts whether by race, gender, or political party affiliation is by its nature a discrimination and an unequal treatment of one voter or one group of voters over others. As in Brown, the separation itself is the pernicious activity and the result is inherently unequal.

Where the effects of the unequal treatment are obvious and palpable and an electoral outcome is, by definition, a distortion of one person, one vote, what is the necessity of identifying a manageable standard?  In Bandemer, Democrats won 51.9% of the popular vote but only 43 of 100 seats. Yet the Supremes persist in pursuing the elusive MacGuffin while defenders of gerrymandering light the fires to smoke the herring.

The Maltese falcon never appears unwrapped in the movie. A manageable standard to find political partisan gerrymandering unlawful requires only clear vision as to its deleterious effects upon the democratic process. In the nearly six decades since Baker v. Carr (1962), SCOTUS has shown an obsession with MacGuffins and red herrings; this needs to be put aside in favor of its own recognition of one person, one vote. The separation of voters by political persuasion, like separating students on the basis of race, creates unequal voting and is inherently unequal.



Categories: Issues

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