The Supremes gave us a wonderful gift last Friday, but their term wasn't quite over. They released three more opinions yesterday. The one of greatest interest to me is the one about gerrymandering. Fifteen years ago the citizens of Arizona got fed up with their legislature not doing what they wanted and passed a state constitution amendment putting the redistricting task in the hands of an independent commission that the legislature could not overrule. The legislature became miffed at the power taken away from them and sued. Their claim was that the US Constitution said everything associated with elections of Representatives was to be decided by the legislature of the state.
In a 5-4 decision Ruth Bader Ginsberg said the word can be defined as, "The power that makes the laws." And that could easily be – and is more democratic when it is – the people. Roberts was not amused by simple definition swaps. We needed the 17th Amendment to specifically say Senators should be elected by the people and not the legislature.
Ginsberg noted that even Founding Father James Madison worried about gerrymandering. The court should have done something about it before now but hasn't been able to find a "workable standard" to support a constitutional limitation.
The ruling does not mean independent commissions must draw district boundaries. It does mean that if the people vote to create an independent commission the Constitution does not prevent it. That's good to hear because Michigan is highly gerrymandered and we'd like that opportunity here.
The second Supreme ruling yesterday involved the first of three drugs used in death penalty cases. This time the conservatives prevailed. The issue is whether mishandling that drug causes cruel and unusual punishment, which the 8th Amendment forbids. The Alito decision noted the Court has never ruled any particular method of execution is cruel and unusual and this one isn't either. They gave two reasons. First, the inmates who brought the case couldn't show the state had a better drug than the one in dispute. Second, the inmates couldn't show misuse was likely, they only showed it can happen.
The main dissent was written by Sotomayor. First, she says, mishandling is more likely than the conservatives suggest and that could result in searing pain. Second, the burden of proof should not be on the inmates.
But it is the Breyer dissent that is attracting attention. He read his dissent from the bench and suggested that the death penalty is unconstitutional. That brought a heap of scorn from Scalia who said the Constitution "explicitly contemplates" the death penalty (whatever that means).
The third case was about the Environmental Protection Agency's new rules for regulating pollutants from power plants. Again, the conservatives prevailed. They ruled the EPA must factor in some kind (any kind) of cost-benefit analysis when it applies regulations to a particular facility. For example, if preventions for hazardous emissions would cost $10 billion to install but the benefit is only $6 billion, then the EPA should not enforce what it wants. That's the central question. The Court did say the benefit could include whatever the EPA thinks is appropriate such as harder to measure things like health care savings in the surrounding neighborhood.
With that the Supremes are done until October.