[EL] Knowing It and Seeing It

Mon Apr 21 10:21:22 PDT 2014

         The analogy between pornography and partisan gerrymandering with respect to the "I know it when I see it" idea is not as straightforward as is sometimes assumed.

          Justice Stewart's use of the idea in connection with pornography has usually been the subject of derision, and rightly so in my opinion.  Nevertheless, his statement is true in the great majority of cases.  We know for example, when we see or read Shakespeare's "Romeo and Juliet" and "Measure for Measure," they are not pornography, notwithstanding that eroticism is a central theme.  I shall leave it to the ingenuity of subscribers to this listserv--alas, it will not take much ingenuity--to find web sites featuring material that we know, when we see it, is pornography.

          It is true that to a limited extent what is erotic and the culturally approved means of expressing eroticism vary from time to time and from place to place.  Nevertheless, for the most part across cultures and to a very large extent within a culture, we do indeed know it when we see it.  Pornography and non-pornography are like night and day, in that anyone can tell the difference but there is a twilight of uncertainty.  The reason Justice Stewart's aphorism is derided is that in the case of the regulation of pornography, the twilight is now perceived to be of overriding importance.  I believe Justice Stewart's aphorism would have been received as unremarkable at most times prior to the twentieth century.  By the middle of the twentieth century, the harassment of meritorious work genuinely within the twilight zone or perceived quite unreasonably by some to be within the twilight zone--Lady Chatterley's Lover and Ulysses, respectively, to take two historically important examples--was not worth the benefit, perceived increasingly to be small or non-existent by culturally dominant and imperious forces, of regulating pornography.  Nevertheless, it remains the case as a general matter that the recognition of pornography is direct and plain to all people.

         The same is not true of partisan gerrymandering.  It is arguably true of non-compact versus compact redistricting.  (I say arguably true, because as Rick suggests, compactness as a concept has its complexities.  But just as the quality of pornography is not determined entirely by how much sex is depicted, non-compactness is probably pretty evident intuitively to most people in most cases despite the conceptual problems.  At least, I'm willing to concede that for this argument.)  But non-compactness is not what most people object to in redistricting; rather, they believe it is an indicator of what they object to.

          As anyone at all familiar with the literature on redistricting knows, the problem of defining what, if anything, is objectionable about redistricting that is called partisan gerrymandering is anything but straightforward.  There are even some, including myself, who belief the search for what is objectionable is a search for a phantom, something that does not exist.  But the Stewart aphorism calls not so much for definition as for recognition.  Now it is surely true that certain redistrictings have been so widely described as partisan gerrymanders that it comes to seem that to see such redistrictings is to know them as such.  But that is an illusion.  Take one notorious example, on which I cut my teeth during the period in which I began to write academically on this subject: the 1980s California redistricting for both houses of the state legislature and, especially, the House of Representatives.  These were universally reported as flagrant Democratic gerrymanders.  But not more than a handful of people in California or elsewhere could have looked at the maps of those plans or any other descriptive materials of those plans and formed an independent judgment of their political intentions or effects.  Virtually everyone was reliant on the interpretations of others.  And the interpreters--reporters, for example--were themselves incapable of forming an independent judgment, meaning they were entirely dependent on the imperfectly informed and self-interested interpretations of their sources, the great majority of whom themselves were incapable of forming an independent judgment.

           It is not my purpose here to deny that these plans were in fact Democratic gerrymanders.  Probably they were, though I myself am and was incapable of forming an independent judgment.  Assuming the plans were Democratic gerrymanders, that is at best a simplification, though probably one containing considerable truth.  Because the plans, like any plans adopted by a legislature, reflected thousands of disparate decisions, large and small, based on thousands or tens of thousands of different interests.

           Though it may just be lore, I believe it is the case that Justice Douglas, in the 50s and 60s refused to examine the materials at issue in pornography cases, because he did not regard any regulation of pornography as permissible.  No justice who believed some pornography was subject to regulation could conscientiously NOT examine the material, because the Justice's determination would be based on his own ability, like virtually any other human being, to tell the difference in most cases between pornography and non-pornography.  In other words, any case-by-case judgment on pornography will be largely informed by Justice Stewart's aphorism, though also by other evidence as well, such as evidence of particular community standards and commentary that could point out, for example, literary merit that might not be at first sight apparent.

            In contrast, no judges ever have or ever will make a judgment on partisan gerrymandering based in significant part on their own independent assessments of the plans viewed directly.  The judges all have been and always will be entirely dependent on the interpretations of others.

            Acceptance of the above is not in itself a reason to reject regulation of partisan gerrymandering such as that proposed by Justice Stevens.  I intend only to show why Justice Stewart's aphorism, though insufficient in the case of pornography, is altogether inapplicable and misleading in the case of redistricting.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, April 21, 2014 8:20 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 4/21/14

Justice Stevens Especially Unconvincing About His Partisan Gerrymandering Amendment<http://electionlawblog.org/?p=60685>
Posted on April 21, 2014 8:19 am<http://electionlawblog.org/?p=60685> by Rick Hasen<http://electionlawblog.org/?author=3>

In my Daily Beast review<http://www.thedailybeast.com/articles/2014/04/20/change-the-constitution-in-six-easy-steps-it-won-t-be-that-simple-justice-stevens.html> of Justice Stevens new book, Six Amendments<http://www.amazon.com/Six-Amendments-Should-Change-Constitution-ebook/dp/B00GM0P55M/>, I was pretty tough on Justice Stevens. I focused on campaign finance, but there are problems throughout the book on questions of drafting of the amendments and his reasoning (note today’s Liptak column <http://www.nytimes.com/2014/04/22/us/politics/justice-stevenss-prescription-for-giant-step-in-wrong-direction.html?ref=politics&_r=0> in which Justice Stevens cannot even tell us <http://electionlawblog.org/?p=60681> how he would deal with the media exemption, one of the key questions in overturning Citizens United etc.). Josh Blackman, <http://joshblackman.com/blog/2014/04/14/justice-stevens-2nd-amendment-op-ed-quietly-edited-and-it-still-doesnt-make-any-sense/> to give another example, notes the poor drafting of Justice Stevens’ attempt to overturn Second Amendment jurisprudence.

I wanted to focus a bit more here on partisan gerrymandering, on an issue which did not make it into the Daily Beast piece. In his ABC interview, Justice Stevens says “it doesn’t take a genius” to recognize political gerrymandering—basically that gerrymandering can be determined from the bizarre shape of the district. When the interviewer, George Stephanopoulos analogizes this to Potter Stewart’s pornography standard (“I know it when I see it”), Stevens agrees and says Stewart would have agreed with him on political gerrymandering.

Whether or not Justice Stewart would have agreed with Justice Stevens (I’m skeptical, given his dissenting opinion<http://supreme.justia.com/cases/federal/us/377/713/case.html> in Lucas), Justice Stevens’ take in his book on political gerrymandering is wholly unconvincing. Here is his proposed amendment:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

The language of the proposed Amendment would have courts decide how “compact” is compact enough and what the definition of “preserving the political power of the party in control of the state government means,” As with the other amendments, these leave room for very wide and varying judicial interpretations.

But more to the point, I don’t think the Amendment reflects the standard Justice Stevens would use, this Amendment focuses on intent, but in the book and the ABC News interview the Justice says he would focus on the physical appearance of the districts. Twice in his book he analogizes partisan gerrymandering questions to the racial gerrymandering cases. “As our racial gerrymandering cases demonstrate, the courts are fully capable of recognizing and remedying such a violation.”  Further, discussing the 1993 case of Shaw v. Reno<http://www.law.cornell.edu/supct/html/92-357.ZS.html>, Justice Stevens writes:

While [the Court in Shaw v. Reno] recognized that a state legislature is not entirely prohibited from acting with consciousness of race, it concluded that racial gerrymandering is impermissible whenever race was the legislature’s “dominant and controlling rationale” in drawing district lines. There is no reason why that test should not also apply to political gerrymanders like the one that Governor Gerry and his fellow Republicans designed in 1812.

Justice Stevens omits the key fact that he dissented in Shaw and in all of the racial gerrymandering cases of the Court. He does not believe that such districting violates the Constitution.  He explains that the Shaw dissenters “thought that race-conscious districting for the purpose of benefiting minority voters was permissible….”

But that was not the sole basis for the dissents in Shaw and in the racial cases. Further, unlike racial categories, political categories are much harder to characterize, and social scientists and courts have struggled with workable definitions of the term “partisan gerrymandering.” At the very least, we deserve an explanation as to how a partisan gerrymandering test would be workable when he believes a racial gerrymandering test would not be.

“I know it when I see it” pretty much sums up the Justice’s explanation of this amendment. Like much else in the book, Justice Stevens does not offer a clear and full defense of his controversial ideas. Perhaps a full defense would be convincing.  Too bad we do not have one to consider.

[cid:part11.08000802.09070300 at law.uci.edu]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60685&title=Justice%20Stevens%20Especially%20Unconvincing%20About%20His%20Partisan%20Gerrymandering%20Amendment&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

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