October 1, 2012
It's The First Monday In October, With One Opinion Out On Redistricting
It’s the first Monday in October, which means the Supreme Court’s 2012 term opens. Two cases are on the docket for argument today, Kiobel v. Royal Dutch Petroleum (10-1491), and Lozman v. Rivera Beach, FL (11-626). The former deals with application of the Alien Tort Statute to corporate activity and the latter as to whether a floating structure that is indefinitely moored and receives power and other utilities from shore is considered a vessel under federal statutes. The oral argument transcripts should be available from the Court’s web site later on today.
The Court did issue one per curiam opinion last week. The case is Tennant v. Jefferson County Commission (11-1184). The case concerns redistricting of congressional districts in West Virginia. A three judge panel invalidated the redistricting plan implemented by West Virginia for violating the “one person one vote” principle embodied in Article I, §2 of the Constitution. The Court requires that populations in congressional districts be more or less the same number, but does allow differences when the districts are drawn in a way that meets legitimate state objectives.
The plaintiffs argued that there was a population difference of 0.79% between districts. Competing state plans could have brought this number lower if one had been adopted. Some of the legitimate state objectives include not splitting counties between districts, limiting population shifts, avoiding contests between incumbents, splitting political subdivisions, and others. The Court said that under its standards from Karcher v. Daggett, 462 U. S. 725 (1983), West Virginia demonstrated legitimate state interests through the plan that was adopted. The others didn’t come as close in that regard, though they may have further minimized the population differences compared to the plan before the Court. The three-judge panel’s decision was reversed and remanded for further proceedings.
I should note one more Court related development. The Los Angeles Review of Books has published an interview by Don Franzen with Justice Scalia concerning his book with Bryan Garner, Reading The Law. There are no snipes with Judge Posner. A sample:
FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.
SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.
FRANZEN. Then what about the Reno case, extending it to the internet?
SCALIA: Of course. There’s no reason why speech on the internet is not speech.
The rest of the interview is well worth reading. [MG]