Justices Fear Being Pushed Into Partisan Voting Battles

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By Kimberly Robinson

Nov. 4 — The question sounds like a bad lawyer joke: How many judges does it take to throw out a redistricting case? But arguments at the U.S. Supreme Court Nov. 4 showed that the answer could have serious implications for a topic largely untouched by the justices—political gerrymandering.

A group of Maryland citizens asserts that the most recent map for determining the state's eight seats in the U.S. House of Representatives unconstitutionally retaliates against voters because of the way that they have voted in the past—a theory that could provide the court with a way to police such line drawing.

But that First Amendment issue isn't before the Supreme Court because the case was dismissed by a single district court judge for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

The question before the justices was whether a single district court judge could dismiss the case under Rule 12(b)(6), or whether a three-judge panel had to review the case at that stage under the Three-Judge Court Act, 28 U.S.C. §2284.

During oral argument, most justices seemed inclined to allow the claim here to go to a three-judge panel, desiring a clear rule that wouldn't bounce novel claims.

But some justices—particularly Chief Justice John G. Roberts Jr.—were concerned that the automatic appeal to the Supreme Court, which is available after a three-judge panel, would force the high court to weigh in on what are typically politically charged disputes without the benefit of issues percolating first in the circuit courts.

According to the challengers, the state's most recent maps marginalize the predominantly blue state's Republican voters.

Currently, seven of Maryland's eight congressional districts are represented by a Democrat.

Line Too Fuzzy?

The Three-Judge Court Act, as amended in 1976, mandates that a three-judge panel be convened in redistricting disputes unless a single judge “determines that three judges are not required.”

Mayer Brown LLP associate Michael B. Kimberly, who argued for the challengers (83 U.S.L.W. 1902, 6/16/15) (112 DER 112, 6/11/15), said that the 1976 amendments to the act merely codified the current practice and Supreme Court precedent.

A single judge may only dismiss a complaint where it is “constitutionally insubstantial,” Kimberly said. That means “essentially fictitious,” “wholly insubstantial,” “obviously frivolous,” or “obviously without merit” under Goosby v. Osser, 409 U.S. 512 (1973).

That's a far cry from Rule 12(b)(6), which deals with the merits, Kimberly said.

Kimberly said that a claim that would be considered frivolous under Rule 11—which requires attorneys to represent that the claims they file are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law”—might not be “obviously frivolous” under Goosby.

To be capable of being dismissed by a single judge, there can't possibly be any debate that the claims are foreclosed under current Supreme Court law, Kimberly said.

That's an “awfully fuzzy line” to draw, Roberts said. A single judge can't dismiss the case if the plaintiff is just wrong, but he can if the plaintiff is “really wrong”?

The “rule” the challengers are arguing for is really just a thesaurus, Roberts said. “It's just a collection of adjectives that all mean ‘frivolous,' ‘insubstantial.' ”

“I'm not sure it gives a great deal of guidance to a court,” Roberts said.

That was actually an argument in his favor, Kimberly countered. If the court wants to adopt a clear rule, it should be that all merits questions have to be decided by a three-judge panel, he said.

Out of This World

But Maryland Assistant Attorney General Steven M. Sullivan took issue with Kimberly's characterization of the 1976 amendments as just codifying current practice. Congress considerably narrowed the scope of the Three-Judge Court Act with the 1976 amendments, he said.

The current language allows a single judge to dismiss a complaint where on its face it fails to state a valid claim, Sullivan argued.

That gives the term “not required” a completely differently meaning that the court gave it pre-1976, Justice Sonia Sotomayor said. Constitutionally insubstantial is “very different” than a 12(b)(6) motion, she said.

Justice Elena Kagan agreed. The Supreme Court's discussion of the claims in this area has always sounded “merits-y,” she said.

But what it is really all about is whether the claim is “completely ridiculous”—whether it is “just a laughing stock of a case, given our precedents,” Kagan said.

That's a much different kind of question than the typical 12(b)(6) inquiry, Kagan said.

It's true that the case is easier when it involves something outlandish like “little green men,” Sullivan said. But two additional judges also shouldn't have to be convened when the complaint clearly fails to state a claim, he said.

This court hasn't limited the circumstances under which a single judge can dismiss a case to cases involving “extraterrestrials,” Sullivan said.

“I don't know what you mean by ‘extraterrestrials,' ” Justice Antonin Scalia interjected.

The argument is that a single judge can only dismiss cases that are “so outlandish” that they involve “something that on its face you could say that could never be true,” Sullivan explained.

That's what you mean by extraterrestials: outlandish? Scalia asked dubiously.

“Yes,” confirmed Sullivan.

Scalia later showed skepticism for Sullivan's overall position. You also think that “required” in the statute means “states a claim,” right? he asked.


But some of the justices wondered if such a standard would bounce novel claims.

What happens when a complaint seeks to overturn Supreme Court precedent, Roberts asked.

More specific to redistricting, Justice Samuel A. Alito Jr. noted that the court hasn't found a political gerrymandering case—as opposed to a racial gerrymandering one—that it thought was justiciable. Would all political gerrymandering cases get tossed by a single judge? Alito asked.

“They want to raise about as important a question as you can imagine,” Justice Stephen G. Breyer said. “If they are right, that would affect congressional districts and legislative districts throughout the nation.”

Given that Congress wanted three-judge panels to hear redistricting cases generally, how can it be that when “the single-most important issue that could possibly be raised—I exaggerate only slightly—is raised,” it can be decided by a single judge because it isn't yet a part of our case law? Breyer asked.

Sullivan attempted to allay those concerns by explaining that a dismissal by a single judge is still appealable through the normal channels.

“So it goes all the way up, and if he loses in the court of appeals, he tries to come up here, right?” Scalia asked. “And we finally decide it did state a claim. Then what happens? It goes back down and you begin all over again with a three-judge court, right?”

When Sullivan responded, “Yes,” Scalia said, “Wow. Wow, that's—I mean, that's my comment. It's extraterrestrial.”

Jumping In

The other alternative “is it's a three-judge district court, and then we have to take it on the merits,” Roberts said.

That's because a ruling from a three-judge panel bypasses the traditional appellate process and is automatically appealable to the Supreme Court.

That's “a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case—I speak for myself, anyway—that we might deny cert. in, to let the issue percolate. And now with the three-judge district court, no, we have to decide it on the merits.”

Breyer echoed that concern. The cases are “specially political,” he said.

If the challengers are correct, “where we should be particularly careful as to how we proceed,” we will have no choice but to jump in, Breyer said.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Transcript at http://src.bna.com/UX.