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Court releases October calendar

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Court releases October calendar

With all the decisions from October Term 2018 now released, the Supreme Court began to look ahead to the fall today, releasing its oral argument calendar for October. The justices will tackle one of the highest-profile issues of the term almost immediately, when they hear oral argument in a trio of cases involving whether federal employment-discrimination laws apply to LGBT employees.

During the second week of the October sitting, the justices will hear oral argument in a group of cases involving the constitutionality of appointments to the financial oversight board created to get Puerto Rico back on its feet. The court only announced on June 20 that it would review these cases, but they have been expedited for oral argument. The justices will close out the sitting with the oral argument in the case of Lee Boyd Malvo, who was sentenced to death without the possibility of parole for his role in the notorious wave of sniper shootings in the Washington, D.C., area in 2002.

The justices will hear oral argument in 14 cases in the October sitting. However, because some of those cases are consolidated, they will hear just nine hours of argument, including two relatively rare afternoon arguments. The sitting (which normally comprises six days) will have just four days: October 14 is a legal holiday – Columbus Day – and there are also no arguments on October 9, presumably (although the calendar does not say so explicitly) in observance of Yom Kippur. The full list of cases slated for the October calendar follows the jump.

Kahler v. Kansas (Oct. 7): Whether the Constitution allows a state to abolish the insanity defense.

Peter v. NantKwest (Oct. 7): Whether an unsuccessful patent applicant who wants a federal district court to review the U.S. Patent and Trademark Office’s denial of his patent must pay the expenses for USPTO employees, including attorneys.

Ramos v. Louisiana (Oct. 7): Whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states.

Bostock v. Clayton County, Georgia and Altitude Express v. Zarda (consolidated for one hour of oral argument) (Oct. 8): Whether the federal ban on employment discrimination “because of sex” applies to discrimination based on sexual orientation.

R.G. & G.R. Harris Funeral Homes v. EEOC (Oct. 8): Whether federal employment discrimination laws prohibit discrimination against transgender people.

Financial Oversight Board v. Aurelius Investment, consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment and UTIER v. Financial Oversight Board (Oct. 15): Challenge to the constitutionality of appointments to Puerto Rico’s financial oversight board.

Kansas v. Garcia (Oct. 16): Whether federal immigration laws trump a state prosecution for identity theft.

Rotkiske v. Klemm (Oct. 16): Whether the statute of limitations under the Fair Debt Collection Practices Act is paused until the plaintiff discovers the basis for his lawsuit.

Mathena v. Malvo (Oct. 16): Whether the Supreme Court’s decision in Miller v. Alabama, holding that the Constitution’s bar on cruel and unusual punishment prohibits mandatory sentences of life without parole for juveniles, applies only when life-without-parole sentences are mandatory.

This post was originally published at Howe on the Court.

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Event announcement: Upcoming Supreme Court panel at UC Irvine available by livestream

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Event announcement: Upcoming Supreme Court panel at UC Irvine available by livestream

On July 8 at 10:30 a.m. PT, UCI Law will host its ninth annual “Supreme Court Term in Review.” Panelists include Jonathan Adler, Erwin Chemerinsky, Chris Geidner, Michele Goodwin and Sarah Harrington; Rick Hasen will serve as moderator. A livestream of this event, which will take place in Irvine, California, will be available at this link.

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Gerrymandering symposium: Supreme Court confirms that it will not save our maps, only voters can

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Gerrymandering symposium: Supreme Court confirms that it will not save our maps, only voters can

Thomas P. Wolf (@tomtmwolf) is Counsel with the Democracy Program at the Brennan Center for Justice at NYU School of Law, which filed an amicus brief in support of the challengers in Rucho v. Common Cause and Lamone v. Benisek.

The Supreme Court’s ruling in this term’s partisan-gerrymandering cases is a stunning abdication of the court’s responsibility to protect voters’ constitutional rights. The court will face widespread backlash for shutting down federal partisan-gerrymandering claims, and rightfully so: The court’s ruling in its joint opinion in Rucho v. Common Cause and Lamone v. Benisek is based on demonstrably false premises and will license even more extreme partisan abuses of our redistricting processes than we’ve already experienced. Ultimately, the reasoning underlying Rucho confirms the long-running wisdom that fully fair maps, if they arrive at all, will arrive through reform, not from sweeping litigation victories. Reform must now take center stage.

Two of the many ways in which the partisan-gerrymandering cases were wrongly decided can shed some valuable light on the relatively small role the Supreme Court was willing to play here, in even the best-case scenario. Let’s take them in turn.

First, Rucho asserts that the court could not recognize partisan-gerrymandering claims without unleashing a flood of cases that would overwhelm the justices’ docket—what Chief Justice John Roberts describes as an “intervention … unlimited in scope and duration” that “would recur over and over again.” This assumption was ill-founded, at best, requiring the court to ignore substantial demonstrations to the contrary.

This term’s cases presented the court with a significant, but relatively rare, problem: extreme partisan gerrymandering, where a political party uses the redistricting process to net and entrench an unbreakable legislative majority that it couldn’t command without unusual manipulations of the electoral map.

Targeting the kind of extreme gerrymandering at issue in this term’s cases didn’t carry the threat of judicial intervention into maps everywhere. Extreme gerrymandering was a problem this decade in only a handful of states at the congressional level, and less than a dozen at the state legislative level. Under these circumstances, any fear of a flood of new redistricting litigation wasn’t a viable reason—let alone an excuse—for the Supreme Court to do nothing. Instead, it should have been an inducement to the court to define the problem it was addressing clearly and rigorously vet the elements of a constitutional offense.

The law can handle this problem. For instance, the court could have ruled that a map is unconstitutional when the mapmakers (a) intended to maximize and lock in one party’s seats for a full decade, (b) actually succeeded in doing so, and (c) could offer no neutral explanation for the degree of partisan advantage observed in the map. There is nothing mysterious or unorthodox in the basic structure of that standard. Legal tests based on bad intent, bad effect, and some kind of neutral justification or burden-shifting are a staple of, among other things, 14th Amendment law. And plaintiffs can draw on robust qualitative and social-science evidence to substantiate violations of a standard like this by showing where maps have reached durable partisan extremes.

One need look no further than plaintiffs’ recent string of victories in trial courts for evidence of the workability of this approach. Countless lower courts have not only endorsed this kind of analysis—or something meaningfully close to it—but also demonstrated how judges could apply it easily and predictably. If the Supreme Court believed that this clear and narrow standard was still somehow insufficient, it could have supplemented it with additional criteria that are closely correlated with extreme gerrymanders, chief among them single-party control of the redistricting process.

The limited solution sketched out here would have been able to eliminate the worst maps, primarily by establishing the outer bounds of constitutional behavior. Within these bounds, states would still have had substantial freedom to shape their maps, including the freedom to engage in all the legitimate policy balancing that is inherent to redistricting.

None of this was a mystery to the court. It was detailed not only in the multiple, extensive lower court opinions from around the country, but also in countless party briefs and amicus briefs from the past two terms. The court really did have one or more workable standards before it, and nonetheless chose to walk away.

Second, Roberts’ majority opinion also implicitly assumes that costs of the court’s walking away will be far lower than the costs of getting involved. Under this assumption—which the chief justice surfaced at last term’s arguments in the Wisconsin partisan gerrymandering case—nonintervention is costless, while intervention could be nothing but costly. If this calculus were ever true, it is no longer. The court could have intervened here in a low-cost way by targeting extreme gerrymanders, as we’ve seen. Meanwhile, the costs of not doing so will be staggering—and were entirely foreseeable by the majority.

The Supreme Court has now given a glowing green light to would-be gerrymanderers to push their partisan advantage as far as they can in the next round of redistricting. The result could very well be extreme partisan gerrymanders in any state where one party controls the entire mapping process.

The court’s ruling likewise voices tacit assent to recent attacks on the deep-seated American norms against entrenching political power. Extreme partisan gerrymanders in states like North Carolina represent one of many tools that dominant political parties have deployed to cement their power, along with jurisdiction-stripping bills, judicial impeachment pushes and the like. As extreme gerrymandering’s role in melting down the separation of powers suggests, voters will not be the only losers from the court’s ruling—state courts and governors might suffer, too.

The federal courts will lose as well. Rucho cedes substantial power to state legislatures around the country, with the court unilaterally stripping the federal courts of the power to police legislative power grabs that threaten constitutional values. Moreover, this week’s ruling—indefensible as it is—will erode the court’s reputation with the public, which has overwhelmingly supported the justices placing limits on gerrymandering.

Despite all these clearly foreseeable problems with staying its hand, the court seems to have concluded—however wrongly—that its legitimacy was better served by walking away.

The court’s problematic reasoning is a strong reminder that—in even the best-possible scenario—the justices were likely to give only a small assist to the cause of fair maps. A court this committed to blinkered perspectives on managing its docket and preserving its legitimacy was never going to grant a sweeping ruling that remade American redistricting from top to bottom. At most, we could have expected a ruling limited to the most extreme abuses of the redistricting process. It always would have been voters’ responsibility to pursue more comprehensive reforms through other avenues. In other words, the premium on reform was always high.

That premium has now just gotten higher.

With the Supreme Court off the table, energy to reform redistricting should be focused on voter- or legislator-led efforts to remake the rules of the process. Properly designed independent redistricting commissions would mark a substantial step forward. Commissions are not the end-all and be-all, however. Reforms to mapmaking criteria—making them clearer, using them to elevate important values like compromise and racial equity, and rank-ordering them in terms of importance—could also produce meaningful change. Promoting transparency and public participation would produce significant dividends, too.

Recent successes with voter-led reforms in Colorado, Michigan, Missouri, Ohio and Utah have demonstrated voters’ ability to band together to achieve change. Attention now shifts to Arkansas and Oregon, among others, which could represent the next wave for the voter-led reform movement.

Legislator-led reform is also a possibility. In the absence of Supreme Court rules barring extreme partisan gerrymandering, any party with a tenuous hold on power faces a threat of being redistricted into irrelevance in 2021. Federal and state legislators need only look at what has happened and what will come to find the motivation to reach compromises now. Legislators in states like Pennsylvania, New Hampshire, New Jersey, New Mexico and Virginia are working now to avoid the worst-case scenario. Other states should follow suit.

Congress can, and should, join the effort. Significant redistricting reform bills are already circulating on Capitol Hill, including H.R. 1—which the House passed in March—and the Fair Maps Act of 2019. H.R. 1 would help combat extreme partisan gerrymandering by ensuring that states draw congressional districts using independent redistricting commissions staffed with diverse members, by establishing clear and fair redistricting criteria, and by mandating greater transparency in redistricting. The Fair Maps Act—introduced by Senator Michael Bennet (D.-Colo.)—would not only establish ranked, baseline criteria to guide the redistricting process, but also provide a private cause of action that would allow voters to take bad maps to court.

The Supreme Court made clear this week that it will not save our maps. But it never would. The health of our democratic processes has, would, and will always ultimately hinge on voters taking an active role in sustaining it. The court has done us no favors with its ruling, except to hammer home our basic responsibility to perfect our system.

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Gerrymandering symposium: Court to foxes — Please guard henhouse

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Gerrymandering symposium: Court to foxes — Please guard henhouse

Benjamin D. Battles is the Vermont solicitor general. Vermont, along with 20 other states and the District of Columbia, submitted an amicus curiae brief in Rucho v. Common Cause.

The Supreme Court has declared the federal judiciary closed for business when it comes to partisan gerrymandering. Federal courts are now powerless to stop state officials from drawing electoral maps designed to keep themselves and their parties in power, at least so long as the districts created meet basic apportionment standards and can be justified on non-racist grounds. But many questions remain. Is extreme partisan gerrymandering legal? Can it be stopped? How? And by whom? Although Congress could potentially provide some answers, most will come from the states—through maps drawn by state officials, laws passed by state legislatures, decisions issued by state courts under state laws and constitutions and votes cast in state elections. For better or worse, those rightfully concerned by the growing potency and sophistication of partisan districting efforts (a group that seemingly includes everyone except incumbent politicians) must now focus their concerns on these state political and legal processes.

In a 5-4 opinion written by the chief justice, the Supreme Court held that federal courts lack jurisdiction to resolve partisan-gerrymandering claims. In so doing, the court overruled—without acknowledgement—a six-justice majority’s holding in Davis v. Bandemer that partisan-gerrymandering claims are justiciable. As an aside, this treatment of Bandemer was somewhat surprising given the heated debates about stare decisis seen in this term’s earlier decisions in Franchise Tax Board of California v. Hyatt and Knick v. Township of Scott. Indeed, Paul Clement, representing the North Carolina defendants in Rucho v. Common Cause, frankly stated at oral argument—in response to a question from the chief justice—that finding in the state’s favor on justiciability would require overruling Bandemer. In any event, no majority of the court has ever agreed on the correct standard to review partisan-gerrymandering claims, in Bandemer or any case since, and it was this failure that led the majority to conclude that no workable standard exists. The court accordingly held that both Rucho and Lamone v. Benisek presented nonjusticiable political questions and ordered the cases dismissed for lack of jurisdiction.

Two things the court’s opinion did not do are worth noting. First, the court did not in any way bless the maps North Carolina and Maryland officials created in these cases. Rather it described them as “highly partisan, by any measure” and “blatant examples of partisanship driving districting decisions.” Second, the court did not hold that extreme partisan gerrymandering is constitutional. Although it rejected the standards the lower courts applied, it did not seriously question the harms those standards sought to address. Instead, the court noted that excessive partisanship in districting leads to “unjust” results and is “incompatible with democratic principles.” In her dissenting opinion, Justice Elena Kagan argued forcefully—and the majority did not dispute—that these statements implicitly acknowledge that extreme partisan gerrymandering violates the constitution. But, she continued, “[f]or the first time in this Nation’s history, the majority declares it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” So what next? As both the majority and the dissent observed—with different degrees of enthusiasm—any remedy for the harms caused by partisan gerrymandering must now come from either Congress or the states.

Recent history provides little reason to think that Congress will pass legislation addressing the issue. It certainly could, but numerous congressional bills have been introduced in the past decades to address partisan gerrymandering, none of which have become law. Congressional gridlock aside, incumbent legislators are the primary beneficiaries of partisan gerrymandering and presumably the least inclined to curb the practice.

Which brings us to the states. Unquestionably, the actions of the state defendants in Rucho and Lamone, and in other recent gerrymandering cases around the country, raise legitimate questions about the ability of state officials to police themselves when it comes to districting. But state officials, no less than federal judges, are obligated to uphold the Constitution. And there is cause for hope, or at least for renewed determination. The states offer a diversity of potential approaches, and political power is diffused at the state level among a variety of actors—including individual voters—who can exert pressure on the redistricting process. And critically, with the federal courts now unavailable, there is no better option for gerrymandering reform. Several features of state action are noteworthy.

First, even when speaking through their lawyers as defendants (or potential defendants) in redistricting litigation, states have embraced a variety of approaches for addressing partisan gerrymandering. Oregon, for example, filed an amicus brief in Rucho on behalf of 21 states and the District of Columbia arguing for a purpose-and-effects test, like that applied by the lower court, that would provide a judicial remedy in the worst instances of partisan gerrymandering while still affording states significant leeway to experiment with different districting approaches. And the Maryland defendants in Lamone expressly disavowed the North Carolina defendants’ position that partisan-gerrymandering claims were nonjusticiable (although the Maryland defendants of course did argue that the claims against them should be dismissed for other reasons).

Second, as detailed in Oregon’s amicus brief, approximately half of the states have enacted statutory or constitutional provisions to reduce or eliminate the influence of partisan considerations on redistricting. Many states, for example, require congressional or state legislative districting maps to be drawn by a nonpartisan or bipartisan commission. In other states, the legislature retains ultimate authority over redistricting, but the initial task of recommending a map for legislative approval is delegated to a bipartisan advisory group. Other states have enacted structural protections, for example, by requiring legislative supermajorities to approve a redistricting plan, thus making it much easier for a minority party to block a plan it perceives as unfair. A handful of other states have expressly forbidden their officials from drawing district lines to advantage or disadvantage a political party or from using political data—such as voters’ party registration or voting history—in drawing districts.

Third, the Court’s decision in Rucho and Lamone does not foreclose litigation in state courts. Although many states have expressly incorporated federal “case or controversy” principles—including the political-question doctrine—into their own standing requirements, others have not. More significantly, litigants in state court can bring gerrymandering claims under state constitutional provisions and state courts may independently interpret those provisions to create legal standards and provide judicial remedies that are now foreclosed in the federal courts. Plaintiffs in Florida and Pennsylvania have recently had success with this approach, and a state constitutional challenge to North Carolina’s state legislative maps remains pending in that state’s courts.

*          *          *

Of course, none of these examples of state activity represents a silver bullet to the problem of extreme partisan gerrymandering nationwide. The Supreme Court’s decision in Rucho and Lamone is undeniably a major setback for those who are concerned about and offended by this deeply undemocratic practice. But the fight continues. The action now will be in state legislatures, in state courts and in the hands of state voters. It remains to be seen whether these institutions and actors can provide the constitutional safeguards that the Supreme Court is no longer willing to consider.

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Gerrymandering symposium: Finally finality from the Supreme Court on partisan gerrymandering

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Gerrymandering symposium: Finally finality from the Supreme Court on partisan gerrymandering

Justin Riemer is Chief Counsel of the Republican National Committee, which filed an amicus brief in support of the state in Rucho v. Common Cause.

The Supreme Court’s decision in Rucho v. Common Cause is a triumph of judicial prudence. The majority wisely declines to “inject [itself] into the most heated partisan issues” without a plausible grant of authority in the Constitution or any workable standard to “reliably differentiate unconstitutional from ‘constitutional political gerrymandering.’” Chief Justice John Roberts’ opinion recognizes that district-drawing is a complex, inherently political activity, and as such, properly left to elected, politically responsive bodies. By embracing the fact that the court has neither the mandate nor the ability to decipher what constitutes an impermissibly partisan gerrymander, the majority has preserved the court’s neutrality, left our political system to function as it has since the founding, and freed the federal courts to focus on issues where their attention is more merited.

Justice Elena Kagan, in her dissent, writes that “[i]f left unchecked, gerrymanders like the ones here may irreparably damage our system of government.” While no doubt sincere, Kagan’s alarm is unwarranted. As the chief justice recognized and described, “[p]artisan gerrymandering is nothing new,” pre-existing even independence. From the pioneering gerrymandering of Patrick Henry in our “very first congressional elections,” to the recent “serial gerrymander[ing]” of Rep. Steny Hoyer (D-Md.), partisan line-drawing has been a constant feature of our republic. Partisan gerrymanders can perhaps be frustrating, but they are still demonstrably amenable to political resolution. Justice Sandra Day O’Connor, aptly described by the chief justice “as a Justice with extensive experience in state and local politics,” recognized this fact almost 40 years ago, writing in Davis v. Bandemer that “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” Although the appellees assert that partisan gerrymanders discourage political participation, nothing could be further from the truth. Frustrated voters are incentivized to invest their time and efforts in state and local politics. For example, Republican voters in Maryland and Democrats in North Carolina have won back the governorships in their respective states. This increased drive towards civic engagement may explain the long history, detailed in the majority opinion, of judicial prophecies regarding “durable” gerrymanders aging extremely quickly and poorly.

Kagan concedes that the Supreme Court has been a poor political prognosticator, but contends that the age of big data and powerful computers now enables line-drawers to craft perfect, permanent gerrymanders, or “beat democracy.” Kagan’s alarmism is premised on two fundamental misunderstandings. First, she treats political affiliation as if it were as immutable a characteristic as race or ethnicity. It is not. The chief justice adeptly describes America’s extensive history of fickle voting patterns. The past four years offer further evidence that his supposed “musings about the unpredictability of the American voter” are hardly “out-of-date.” In 2016, President Donald Trump carried Michigan and Pennsylvania, states no Republican presidential candidate had won since 1988. Obviously neither state is a gerrymandered district, but most experts thought that both states were safely beyond the reach of Republican presidential candidates – part of the so-called “blue wall.” Trump did not win by redrawing the boundaries of these states or by altering the voting population; he won by campaigning there and winning over long-time Democratic voters.

Second, Kagan fails to appreciate that there is a tension inherent in any redistricting between the desire to maximize the number of districts in which a party is competitive and the security of the districts in which the line-drawer anticipates having a majority. The more districts in which a line-drawer tries to guarantee a majority for his or her party, the smaller the anticipated margins of victory necessarily become and the more vulnerable the districts become to unanticipated results. Particularly in this age of political volatility (with control of the House changing three times in 12 years), you can only stretch a rubber band so far before it snaps. No amount of data or level of computing power can overcome this inherent tension.

The unfounded concerns of Kagan notwithstanding, the Supreme Court’s decision to finally close the door on political-gerrymandering claims is a welcome relief for America and, one would assume, especially the justices. They have doubtless grown weary of fishing for a workable standard to define an unconstitutional political gerrymander. The court has spent the nearly 40 years since Bandemer peering from the bench into the murky waters of redistricting, searching in vain for the contours separating valid political considerations from an unconstitutional political gerrymander. In Rucho, the court has accepted what O’Connor saw straight away in Bandemer: The Constitution “does not supply judicially manageable standards for resolving purely political gerrymandering claims.”

As O’Connor recognized then, and the majority now endorses in Rucho, “political gerrymandering claims invariably sound in a desire for proportional representation,” a claim “based on a ‘norm that does not exist’ in our electoral system – ‘statewide elections for representatives along party lines.’” This ultimate decision should not be surprising to any close observer. While Bandemer and subsequent partisan-gerrymandering cases allowed the possibility of a subsequent example that might be so egregious as to actually constitute an unconstitutional partisan gerrymander, in the nearly 40 years between Bandemer and Rucho the Supreme Court was unable to find an example of an unconstitutional partisan gerrymander or discover a workable, meaningful test to define one. It was not for lack of trying. The past 40 years have seen near-constant litigation seeking what litigants considered a more equitable distribution of legislative seats by party. By the time of Vieth v. Jubelirer four justices had already tired of this fishing expedition, and were clearly prepared to declare the matter nonjusticiable. Justice Anthony Kennedy had not yet thrown in the towel. But, as the chief justice notes, Kennedy was not inviting plaintiffs to bring to the court an innovative political-science metric that would enable it to invalidate most of the nation’s redistricting maps. Quite the opposite, Kennedy noted in Vieth that “an expansive standard requiring ‘the correction of all election district lines drawn for partisan reasons would commit the federal and state courts to unprecedented intervention in the American political process.’” Applying such a test “with uncertain limits, intervening courts–even when proceeding with the best intentions–would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.”

Misunderstanding Kennedy’s admonitions to focus on only the most egregious partisan gerrymanders, several institutional plaintiffs proceeded to concoct a series of deeply flawed “partisan symmetry metrics,” a vintage gimmicky academic title, and invited the Supreme Court to jump into the political mire armed with these new tools. This “fancy evidence,” as Kagan calls the metrics in her dissent, may dazzle those predisposed to require proportional representation, but they are ultimately nothing more than a measure of how unproportional the results within a given map are. To its credit, the court saw through this rebrand of an old idea in shiny new packaging.

Had the Supreme Court listened to the appellees in Rucho and leapt into the swamp, it would likely have found itself up to its eyes in political-gerrymandering cases. As noted, Kennedy’s opinion in Vieth was hardly optimistic about the prospects of a partisan-gerrymandering claim ever succeeding. The court’s decision in Gill v. Whitford last year was deeply pessimistic.

Rather than reconsidering their position, the institutional plaintiffs doubled down by filing additional lawsuits using their fancy new measures of proportional representation. They resurrected and developed even more speculative legal theories based on the First Amendment and the elections clause. At the time the Supreme Court issued its opinion in Rucho there were no fewer than five active federal cases alleging an unconstitutional partisan gerrymander. All of this in the last year of the decennial redistricting cycle.

It is important to remember that these partisan-gerrymandering claims fall on the Supreme Court’s mandatory appellate docket. The court is required to decide cases that arise on this docket even if it does not set them for argument. Kagan believes that even under her proposed standard, only the most egregious gerrymanders would be declared unconstitutional. But as the reaction to the ruling in Rucho demonstrates, redistricting litigation is a zero-sum game. A decision upholding a map is greeted with as much resentment as a decision striking one down. The court would inevitably find itself in the uncomfortable position of having to anger half the country over an expressly political issue every other year, if not every term. As with all rulings with which they disagree, critics of this court will complain that this ruling erodes the court’s credibility. However, the real danger lies in requiring the court to rule on these issues, exposing it to regular reputational body blows. In sum, the court behaved here as the Founders hoped it would. As Alexander Hamilton wrote in Federalist 78, the court “has no influence over either the sword or the purse. … It may truly be said to have neither FORCE nor WILL, but merely judgment.”

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