Bench Memos

Law & the Courts

Five Justices Don’t Know What a ‘Legislature’ Is

Well, this explains a lot: In yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, five justices show that they don’t know what the term “Legislature” means. Yes, those would be the same five justices who last Friday legislated a radical redefinition of state marriage laws.

The specific issue in the case was whether the Elections Clause of the Constitution—which provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”—permits the people of Arizona by ballot initiative to transfer congressional redistricting authority from the state legislature to a special commission. No one contests that congressional redistricting authority falls within the scope of the Elections Clause. But Justice Ginsburg, joined by her fellow liberals and Justice Kennedy, somehow rules that the people of Arizona are “the Legislature” for purposes of the Elections Clause.

The Chief Justice’s dissent is devastating. As he points out in his “What chumps!” paragraph, why would there have been any need for the 17th Amendment, which re-assigned authority for electing senators from “the Legislature” of “each State” to “the people” of “each State,” if the people are the legislature? As he sums things up (citations omitted):

The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court. The Constitution contains seventeen provisions referring to the “Legislature” of a State, many of which cannot possibly be read to mean “the people.” Indeed, several provisions expressly distinguish “the Legislature” from “the People.” This Court has accordingly defined “the Legislature” in the Elections Clause as “the representative body which ma[kes] the laws of the people.”

The majority largely ignores this evidence, relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy.  

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