SCOTUS Oral Argument Analysis: Justice Seem to Support Arizona Legislature

While oral argument is hardly a fool proof indicator of what the Supreme Court will do, it seemed the majority of the Justices favored the Arizona legislature in Arizona State Legislature v. Arizona Independent Redistricting Commission.

The issue the Court will decide in this case is whether Arizona’s Proposition 106, which places all federal redistricting authority in an independent commission, violates the U.S. Constitution’s Elections Clause.   The Elections Clause states:  "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  This case will be won or lost depending on whether the Court views “by the Legislature thereof” to refer to the body of the legislature or to legislative power. 

Even if this wasn’t the biggest case the Supreme Court has agreed to hear involving legislative authority in a long time, the oral argument was bound to be interesting because it featured two well-match opponents: former Solicitor General Paul Clement arguing for Arizona’s legislature and former Solicitor General Seth Waxman arguing for Arizona’s redistricting commission. 

The liberals led by Justice Kagan peppered Paul Clement with questions illustrating their skepticism for Arizona legislature’s position.  One of Justice Kagan’s concerns was that if Arizona wins it is unclear where the line should be drawn as to how much the legislature can be excluded from the redistricting process.  The conservatives lead by Justice Scalia asked Seth Waxman where in the Constitution the framers used the term “legislature” and didn’t mean a state’s governing body. 

Justice Kennedy too asked Paul Clement a number of questions.  But, as Lyle Denniston of SCOTUSblog describes, when Justice Kennedy told Seth Waxman that the history of electing U.S. senators — by legislatures rather than by the voters (before the Seventeenth Amendment passed in 1913, giving that power to the electorate)—“works very much against you,” those in the courtroom could hear the Supreme Court press writing that statement down.     

Justice Breyer, unlike his fellow liberal colleagues, was notable silent during Paul Clements argument.  He ultimately commented to Seth Waxman that the relevant precedents “don’t help you very much.”    

The Supreme Court will decide this case by the end of June.  Read the transcript of the oral argument here.