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Political Editors / April 5, 2016

Did Ginsburg Just Channel Scalia?

Why doesn’t she apply the same standard to every other case?

Hello, gerrymandering. For years, the powers that drew up congressional district maps used prisons and non-voting populations (think illegal immigrants) as filler to give certain voting populations more clout in elections. In a ruling this week, the Supreme Court upheld that practice in an 8-0 decision, saying legislative districts must be drawn up according to how many people live there, not the number of eligible voters.

Two residents from Texas tried to persuade the courts that the power of their vote was diluted thanks to the practice, which they argued runs contrary to the Equal Protection Clause of the 14th Amendment. But in writing the opinion for the High Court, Justice Ruth Bader Ginsberg — who’s no originalist — reached way back to the founding of the nation, quoted Alexander Hamilton, and used history to make the Court’s case.

Ginsburg wrote, “We hold, based on constitutional history, this court’s decisions, and long-standing practice, that a state may draw its legislative districts based on total population.” She added that back in 1789, the whole population was used to determine House seats, despite women not being able to vote and slaves counting as three-fifths of a person.

In his own concurring opinion, Justice Clarence Thomas added that jurisprudence in the issue of one-person, one-vote is not clear-cut. “The Constitution lacks a single, comprehensive theory of representation,” Thomas wrote. “It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.” The ruling is somewhat of a loss for conservatives, but on perhaps the best possible grounds. So when it comes to Ginsburg, why doesn’t she apply the same originalist standard to every other case?

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