Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU.

As soon as the Court decided to hear Evenwel, a barely suppressed anger emerged in many quarters, on grounds of both process and substance. On process: how dare the Court address this issue, when a 1966 precedent seemingly settled the issue, and no conflict existed in the lower courts, to boot. On substance: how disturbing for the Court to consider any change in the legal status quo, in which states are perfectly free to define the “one person, one vote” baseline (total population or eligible voters) for themselves. But on both process and substance, these complaints and anxieties are misplaced and misguided.

The Court is right to confront this issue. And more importantly, the most likely outcome is that the Court will either re-affirm the status quo or conclude that equal protection requires states to use population, not voters, as the measure of political equality – a possibility almost none of the commentary, thus far, seems to recognize.   Continue reading »

October arguments, day by day

By on Jul 29, 2015 at 1:15 pm

The Supreme Court on Wednesday released the schedule of oral arguments for the opening session of its next Term, beginning on Monday, October 5.   The daily schedule, with a brief description of the issues involved in each hearing, follows the jump.  The links via the case names are to the case pages on this blog.

Arguments begin each morning at 10 a.m.   No afternoon arguments are scheduled for this sitting.

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed an amicus brief supporting the jurisdictional statement in Evenwel and will be filing another at the merits stage. Shapiro became a U.S. citizen just last year. Like most immigrants, he does a job few native-born Americans will: defending the Constitution.

The issue in a nutshell

The “one person, one vote” standard (OPOV) has become an axiomatic part of election law: Whatever mischief happens during the decennial redistricting process, states can’t draw districts with wildly disproportionate populations, such that a vote in lightly populated districts is worth much more than a vote in heavily populated districts.

It’s an easy principle to understand. You can avoid getting tied into knots determining whether a given regulation is “congruent and proportional” to the problem it addresses – and you can stay out of the thicket of “undue burdens” and other jurisprudential monstrosities. Continue reading »

The Supreme Court on Tuesday issued the final order in the same-sex marriage cases, a document which formally puts that decision into effect.  The four-page order can be read here.

Although the Court issued its ruling on June 26, its rules allow twenty-five days for a request to reconsider; after that, the Court waits another week to make sure that a petition for rehearing has not been sent through the mail.  Because no petition for rehearing was filed, the case was closed with the Tuesday order.

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Posted in Featured

Event announcements

By on Jul 28, 2015 at 9:25 am

On July 29 at 1 p.m. the State & Local Legal Center will host a webinar on the recently ended Term’s police cases.  The discussion will feature Melissa Arbus Sherry and David Salmons.

On September 16 at 7:00 p.m., Justice Stephen Breyer will discuss his new book with NPR’s Nina Totenberg at Sixth and I in Washington, D.C. More information and tickets are available through Sixth and I’s website.

Posted in Everything Else

Evenwel v. Abbott may wind up being the most important voting case in sixty years. Its political ramifications could rival those of Reynolds v. Sims, the 1964 case that established the principle of “one person, one vote” under the Equal Protection Clause of the Fourteenth Amendment. The key question in Evenwel is what population does that principle require legislatures to use when they are redrawing legislative districts?

Prior to Reynolds, states like Alabama and Tennessee had refused to redistrict for more than half a century, despite a dramatic, nationwide population shift from rural to urban areas. These state legislatures were dominated by rural legislators, who were not willing to reapportion and lose their power and control.

Under the principle established in Reynolds, districts have to be drawn “on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Within two years of the Reynolds decision, legislative districts had been redrawn in almost every state, and urban areas gained a substantial number of legislative seats. Continue reading »

Editor’s note: This post examines two cases the Supreme Court will review at its next Term:  Evenwel v. Abbottand Harris v. Arizona Independent Redistricting CommissionThis post will be followed this week by a symposium on Evenwel.

In a rare meeting with reporters in early July 1968, Chief Justice Earl Warren answered readily when asked which of the Court’s decisions in his momentous years on the Supreme Court were most important.  The series of rulings, he said, that created the constitutional idea of “one person, one vote.”  That is a basic theory of democratic representation: no individual’s vote may be weighted more heavily than any other’s.  Election districts, for Congress and state legislatures, must be drawn as close to equal in population as can practically be done.

The clearest expression of that idea came in the 1964 decision in Reynolds v. Sims.  Now, a half-century later, the Court has assigned itself the task of deciding — remarkably, for the first time — how to get to that goal.  What, it will answer in one case, population measure should be used: total people in a district, total citizens, total citizens of voting age, total numbers of registered voters?  And, in a second case, the Court will answer whether it violates the equality principle if districts are drawn in a way that favors one party’s candidates.

Both cases involve cross-currents of political theory, and both have the potential to directly change election outcomes and the election fortunes of the two major political parties.  There is considerable complexity here, so let’s try to make this simple.

Continue reading »

Event announcement

By on Jul 24, 2015 at 10:42 am

On July 31, as part of the ABA’s annual meeting, the ABA Criminal Justice Section will host a panel discussion of the past Term’s criminal cases. Details on the panel location and a list of panelists is here; registration for the annual meeting is here.


Friday round-up

By on Jul 24, 2015 at 7:39 am


  • In The Washington Times, Tom Howell Jr. reports that, “[r]oughly a week after its loss before an appeals court in Denver, a group of nuns who objected to Obamacare’s birth-control mandate have taken their case to the Supreme Court.”
  • David Lightman of McClatchyDC reports on an exchange between Republican presidential candidate Rick Santorum and television host Rachel Maddow on the role of the Supreme Court.

The round-up will be on vacation next week.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up when we come back, please send it to roundup [at]

Posted in Round-up

A federal appeals court, arguing that the Supreme Court’s abortion rights rulings leave too little room for states to limit the procedure to protect fetal life, has urged the Justices to reconsider a basic idea behind Roe v. Wade.  The idea, never explicitly abandoned by the Court, is that states are forbidden to ban abortions before a fetus is capable of living outside the woman’s body.

The U.S. Court of Appeals for the Eighth Circuit, in a new ruling on Wednesday involving the nation’s most restrictive abortion control law, argued that the so-called “fetal viability” approach has become “unsatisfactory” because it has not kept pace with changes in fetal medicine.  Although the North Dakota law at issued was struck down, the three-judge panel made it clear it ruled that way because the Court had given it no choice, but that it was troubled at having to do so.  State legislatures, not courts, should be making decisions about the state of medical science, it said.

Continue reading »

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