RUTHFULLY YOURS

The Supreme Court on Wednesday heard its second challenge this term to partisan gerrymanders, this time in a case brought by Republicans. The GOP argument isn’t any better than the Democratic case last fall from Wisconsin, and both argue strongly against judicial intervention.

In Benisek v. Lamone, Republicans in Maryland’s 6th Congressional district contend that the Democratic legislature retaliated against them when redrawing the House map in 2011. Lawmakers lopped off 65,000 GOP voters and packed 30,000 Democrats into the 6th district, which helped Democrat John Delaney in 2012 defeat 10-term GOP Rep. Roscoe Bartlett by 21 points. The new district lines “disrupted and depressed Republican political engagement in the area, and manifestly diminished their opportunity for political success,” the GOP plaintiffs allege, thus violating their First Amendment rights.

The Court has long held that drawing districts inherently implicates political questions. But in Davis v. Bandemer (1986), the Court opened a crevice for judges to review political gerrymanders even though a majority couldn’t agree on a standard for determining how much politics is too much. None has emerged.

While the GOP plaintiffs say any map that has more than a “de minimis” effect on voter engagement and dilution is discriminatory, Justice Ruth Bader Ginsburg asked, “What falls in the de minimis category?” Neither the Constitution nor federal law offers an answer, and lawyers in the case disagree. Judges would identify partisan discrimination when they see it.

Under the plaintiffs’ “de minimis” standard, even redrawn districts that make elections more competitive could be unconstitutional. As Justice Anthony Kennedy mused, natural population shifts could impel a state legislature to redraw a district in a way that dilutes a partisan majority. Would that be retaliation?

Chief Justice John Roberts wondered about independent voters, who often turn elections including in Maryland’s 6th. While Mr. Delaney won by 21 points in 2012, he squeaked by with 1.5% in 2014 when GOP Gov. Larry Hogan carried his district by 14 points. The Maryland Solicitor General noted that independents in 2012 overwhelmingly favored Democrats “because of the views of those voters and the strength of that candidate,” not the district lines.

Justice Stephen Breyer playfully suggested the Court use a blackboard to consider the pros and cons of various theories of discrimination to show that “maybe there are different parts of gerrymandering that rises in different circumstances.” The problem is that there is no precise standard that could possibly account for the multiple factors that affect every redistricting and election.

In the Gill case the Court heard last fall, Democrats advocated a convoluted formula called an “efficiency gap” to measure partisanship. But the efficiency gap varies from election to election as voting shifts on an individual and district level. More than half of all maps drawn in the last 45 years had an efficiency gap in one election greater than the 7% standard that Democrats proposed as a bright illegal line.

Maryland’s map had an efficiency gap of 6.7% in 2012 but exceeded 12% in 2016. So Maryland’s map could have been constitutional in 2012 but struck down four years later under the Gill standard. Establishing an arbitrary standard would invite endless parade of partisan gerrymander challenges, politicizing the judiciary.

Consider what happened when the Democratic majority on the Pennsylvania Supreme Court last month struck down the state’s Congressional map as violating the state Constitution. The partisan judges redrew the map in a way that favored Democrats. Republican appeals to the U.S. Supreme Court for an injunction were denied. But why is a partisan map drawn by Democratic judges better than a partisan map drawn by GOP legislators?

Impassioned protests following the mass shooting at a Florida high school culminated over the weekend with marches on Washington, D.C., and other cities. To properly evaluate these spectacles, let’s suspend for the moment Aristotle’s recommendation that the youth should not study politics because they are ruled by their passions rather than reason.

Their anguished voices merit more than condescension. But they have not generally received a serious response, even from those who support their efforts. The best possible start is to consider the view not just of their own “out of it” fathers, but the view of those even more “out of it” fathers, the bewigged gentlemen we call America’s Founders.

In the current controversy we can get to that view by consulting the best adult guide we have on hand and he is that most distinguished American, Justice Clarence Thomas. He teaches us from the grounds of constitutionalism—how citizens ought to debate politics, elect representatives, and advance policies. These practices reflect the purpose of a First Amendment that defended the freedom of speech, press, and assembly. Going beyond the other justices, he argues that neither the First Amendment nor the 14th amendment was intended for kids.

Having gained notoriety as the “BONG HiTS 4 JESUS” case, Morse v. Frederick (2007) pared back the court’s calamitous decision in Tinker v. Des Moines Independent Community School District (1969), which asserted that school kids are presumed to have the First Amendment rights of adults. The justices in Tinker embodied the spirit of the 1960s.

In Morse v. Frederick, Chief Justice John Roberts reaffirmed the right of school officials to exercise discipline. The justices ruled that a high school student did not have the right to sue his school’s principal, who suspended the teen for displaying a banner at a school event that read, “BONG HiTS 4 JESUS.” (The student wanted his banner back, too.) Concurring, Justice Samuel Alito went further, presciently noting, “School attendance can expose students to threats to their physical safety that they would not otherwise face . . . . Experience shows that schools can be places of special danger.” Not just rights to speech but also rights to privacy and other civil liberties may be restricted, he implied.

In the ongoing saga that is Washington, thousands of government emails go missing and a strange dossier charts a bevy of bedwetting prostitutes. The cast of this tale features, among others, a former FBI boss, several shadowy Russians, an American Soviet scholar with a short-wave radio, and a British spy we might call Agent 00$6.95.

The tale also stars FBI lovebirds trading texts about a secret society in the Justice Department and a mysterious “insurance policy.” By all indications, this policy was to be claimed in case a real estate developer named Donald Trump should actually win the White House. Which he did. The story ought to make for a blockbuster movie. Except that it would be a remake. In 1981, “Absence of Malice” already dramatized some of the story’s key themes.

Down in Miami, union boss Joey Diaz has been murdered, but the authorities have no suspects. So prosecutor Elliot Rosen (Bob Balaban) goes looking for somebody to frame. His target is liquor distributor Michael Gallagher, son of a deceased gangster, played by Paul Newman in probably his best performance.

Rosen leaks a fake story that Gallagher is under investigation in the Diaz case. Reporter Megan Carter, played by Academy Award-winner Sally Field, consults Davidek, the paper’s attorney, played by John Harkins. As he explains, “as a matter of law, the truth is irrelevant. We have no knowledge the story is false, therefore we’re absent malice. We’ve been both reasonable and prudent, therefore we’re not negligent. We can say what we like about him. He can’t do us harm. Democracy is served.”

Carter discovers that when Diaz was killed, Gallagher had taken his Catholic friend Teresa Peron to Atlanta for an abortion. When that becomes public, Peron kills herself.

“Couldn’t you see what it meant to her?” Gallagher says. “Didn’t you like her?”

The stricken Carter then outs Elliott Rosen as the source of the leak. Gallagher, his business and reputation now in ruins, makes a plan.

He tells District Attorney Quinn he will find out what he can about Diaz if Quinn will publicly drop the investigation. At the same time, Gallagher makes anonymous donations to Quinn’s campaign for mayor. Rosen thinks it’s a bribe and leaks the story to Carter. Enter James A. Wells, assistant U.S. attorney general, wonderfully played by Wilford Brimley.

A women-only social club is being investigated by the New York Commission on Human Rights. It’s almost certainly illegal.

The Wing is a women-only social club and workspace in New York and Washington, D.C. One of its founders worked for Hillary Clinton’s presidential campaign, and its in-house magazine, No Man’s Land, once featured a trans woman named Hari Nef on the cover. Members say it empowers them, allows them to work without the specter of sexual harassment that lurks around so many corners, and provides them with a valuable social network. It is “not for everybody in the whole world,” one of its members told Jezebel, “but for a specific slice of it” whose members share “certain community values.” Score one for free association.

Except the Wing, precisely because it is a women-only social club and workspace, appears to be in plain violation of New York’s public-accommodations law. Jezebel’s J.K. Trotter has the story. It is illegal in New York, as it is across the country, for businesses that provide public accommodations to “deny” the “full and equal enjoyment” of those accommodations to someone because of his gender (or race, creed, sexuality, etc.). There are exceptions: Groups that have fewer than 400 members and meet certain criteria can qualify as “distinctly private” clubs, which are permitted to discriminate. Meanwhile, larger businesses can apply for exemptions in the “bona fide interests of public policy,” though only three such exemptions have been granted in the last ten years. The Wing has more than 1,500 members, and has not applied for an exemption. Therefore, Trotter reports, it is under investigation by the New York Commission on Human Rights. A civil-rights litigator tells him the group is “likely illegal.”

The possibility that a trendy social club espousing progressive values and contributing to female empowerment is illegal has led to some wishcasting. Law professor Melissa Murray tells Trotter that the investigation is “patently absurd,” and finds the notion that anti-discrimination laws might apply to women’s groups “ludicrous.” Because the mayor of New York is Bill de Blasio, perhaps the Wing will survive: A city spokesman tells New York magazine that the mayor “is fully supportive of the Wing’s mission.” But whether or not New York files suit, it should not be particularly controversial to assert that a business that both furnishes public accommodations and discriminates on the basis of gender might be on the wrong side of an anti-discrimination statute.