The Judiciary Can’t Impose Proportional Representation on the Nation, Justice Kavanaugh

On Tuesday the Supreme Court heard oral arguments in two cases whose plaintiffs contend that legislative redistricting which disproportionately favors the political party in charge of the redistricting process is unconstitutional. These cases present the starkest possible test of whether the Court’s new, supposedly originalist five-justice majority will restore respect for the Constitution or follow previous SCOTUS majorities down the path of judicial imperialism. And so far, the oral arguments have raised concerns that newly appointed Justice Brett Kavanaugh may already be steering the court onto that path. Specifically, Justice Kavanaugh’s questions have suggested that proportional representation could be a useful test for determining if gerrymandering was unconstitutionally partisan.

A brief refresher: Proportional representation is an electoral system used in many continental European countries and elsewhere in which legislative seats are allocated based on political parties’ nationwide share of the vote. In contrast, under the “first past the post” system used in the United States, Britain, and elsewhere, the winner of the most votes in each district is elected, regardless of how her or his party performed in other districts. As I’ve explained previously ( here, here, and here), the two systems are fundamentally incompatible, and can produce very different outcomes from identical vote totals.

The suggestion floated by Justice Kavanaugh is that the equal-protection clause of the 14th Amendment mandates redistricting that produces the same results as proportional representation would. Under this rationale, the constitutionality of Maryland’s congressional districts would be determined by whether Maryland Republicans’ 35 percent of the vote resulted in two or three Republican members of the House of Representatives among Maryland’s eight congressional districts, not one as is the case under the Democrat-controlled state legislature’s current district map, which is the subject of one of the two cases before the Court.

While as a long-time New York Republican I can understand the appeal of such an outcome to a fellow blue-state Republican like Justice Kavanaugh, the temptation must be resisted. The foundational premise of originalism is that, until the Constitution is democratically amended pursuant to Article V, the original public meaning of its text must remain the law of the land. Gerrymandering or no gerrymandering, first-past-the-post has been the rule since the republic’s founding. The politicians who enacted the 14th Amendment in 1868 were all very familiar with gerrymandering. There is absolutely no indication that it occurred to even one of them that the equal-protection clause might overturn the first-past-the-post system, and such a radical interpretation has not been seriously advanced in the 150 years since.

In contrast to originalism, the essential goal of what some call “living constitutionalism” is to get away with revising the Constitution through clever judicial reinterpretations of constitutional language. For living constitutionalists, constitutional language is not to be respected, but twisted as necessary to realize policy outcomes that cannot be achieved through the democratic process. And the 14th Amendment’s equal-protection clause is among the constitutional texts which have been most abused to effect such illegitimate judicial amendments.

One central issue of any representative democracy is how the people choose their representatives. Imposing the standard of proportional representation on our first-past-the-post electoral system would fundamentally transform it. The elections clause of Article I of the Constitution explicitly provides that Congress and state legislatures shall determine the “Times, Places and Manner of holding Elections for Senators and Representatives.” Judicial enforcement of proportional representation would effectively repeal that language, permanently transferring the final determination from democratically elected and accountable legislators to the judiciary. If a constitutional text as clear and explicit as the elections clause can be thus judicially repealed using the equal-protection clause, what’s to stop a Supreme Court freshly packed with more leftists from using the equal-protection clause against other leftist constitutional bugaboos explicitly set out in the Constitution, such as the Senate or the Electoral College?

Justice Kavanaugh’s seeming flirtation with proportional representation has thrilled the anti-constitutional Left, which sees the Supreme Court as a super-legislature of last resort rather than a neutral deliberative body calling balls and strikes (to use Chief Justice Roberts’s metaphor). A Slate writer opined that “Kavanaugh appeared” close to “joining [Justice Elena] Kagan’s crusade” against “extreme gerrymandering” and that gerrymandering opponents “had a fair reason to be optimistic” following Tuesday’s oral arguments. This conclusion was shared by ThinkProgress and by the Los Angeles Times’s report on the cases.

Of course, it is not uncommon for appellate judges to raise positions they do not support in order to elicit opposing arguments to be rebutted. Recognizing that proportional representation is the core issue in these cases, Justice Kavanaugh may have just wanted to hear how counsel dealt with the issue before voting against the plaintiffs. Let us hope that was the case, and that all the effort devoted to securing his confirmation in the Senate will be vindicated by a vote that respects the elections clause, rather than yet again abusing the equal-protection clause to rewrite the Constitution from the bench.