The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.” And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended. Each is effectively drawn, making the most of the materials available to it. Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant. More interesting is the way that the majority weighs the reform objective. The majority in the Arizona case adheres to a model familiar in political reform arguments more generally, within and outside the Court. For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission. The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand. The reason for the difference is simple: the objective that the tools of direct democracy have been in this case wielded to bring about.
Of course, more generally, direct democracy as a tool has proven to be powerful in the hands of those with money and savvy, and the results cannot be routinely characterized as a victory for the popular will. In other contexts, the Court has understood this, and these factors—superior resources—account in part for the success of the Arizona initiative. But the majority can quell any doubt it might have in the matter because it is taken with the campaign’s objective—a defense against abuse of the redistricting process.
Just as the Court stands behind the utilization of direct democracy for this purpose, it adopts a skeptical view of officeholder behavior. The case involves the full displacement of legislative authority over redistricting, a point that the Roberts dissent emphasizes. The Court has been notably selective in this judgment of how much trust can be extended to politicians. Sometimes, as in McConnell, it is impressed with their judiciousness in regulating campaign finance in the larger public interest and not their own. Then, in the dismissal of the legislative record assembled in support of the reauthorization of The Voting Rights Act, we can find a suggestion like Justice Scalia’s that our suspicion of politicians should be heightened when they unite across party lines and achieve unanimity. In the Arizona case, the attitude is more Shelby County than McConnell, and the line-up of Justices is quite different, but it depends, it seems, on how reliably the politicians will do what is expected of them. It depends, in short, on views of the reform objective.