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June 28, 2019

Why the Supreme Court asked for an explanation of the 2020 Census citizenship question

[Cross-posted from The Conversation]

Immediately before the Supreme Court’s summer recess each year, it releases decisions in some of its most challenging and significant cases.

This year was no different.

On June 27, the last day of the term, the Supreme Court decided Department of Commerce v. New York, a case exploring legal issues surrounding the addition of the question, “Is this person a citizen of the United States?,” on the 2020 census.

The decision is of great practical importance, as the final numbers generated by the census will affect representation in Congress, allocation of federal dollars and much more. The political implications of the citizenship question made the case politically volatile and controversial.

In an opinion by Chief Justice Roberts, the court chose not to accept what may well be the Trump administration’s pretext for the citizenship question to mask partisan political and discriminatory motives.

As a scholar of immigration law and civil rights, I was not surprised by the outcome. The court decided the case in a way that will help maintain its legitimacy in the future.

CENSUS INFLUENCE

Because the census is conducted only once every 10 years, it can affect close to a generation of policies.

By influencing electoral districting, the census can affect political representation in Congress, as well as the relative numbers in Congress from the two major political parties. That, in turn, affects how federal money is spent and which groups and programs are preferred or disfavored. Put simply, the census has dramatic political impacts on the entire nation.

In 2018, Wilbur Ross, the U.S. Secretary of Commerce under President Trump, announced that the Bureau of the Census intended to add a question about U.S. citizenship in the form sent to all households in the 2020 census. The proposed question would in fact be a readdition, because some form of that question had been in census questionnaires in the past.

The Trump administration said that the citizenship question would improve enforcement of the Voting Rights Act, which protects the voting rights of citizens. However, opponents claimed that the question was motivated by partisan political considerations, including voter suppression and an effort to systematically undercount immigrants, particularly Hispanics.

In an ideal world, a count of noncitizens could be beneficial to policymakers and researchers.

For example, a city could use the number to establish a need for resources to facilitate naturalization and other immigrant services. States with large immigrant populations would know about how much federal funding was needed to cover immigrants’ costs incurred in public education and English as a second language courses.

However, civil rights groups and immigrant rights activists were concerned that, especially with President Trump at the helm, a citizenship question would discourage immigrants from participating in the census, for fear that answering the question truthfully might lead to their removal from the country by the very administration collecting the data.

If that turned out to be true, immigrants might well be chilled from participating in the census. The result would be an inaccurate – and low – count of immigrants.

THE DECISION

The court held that the proposed citizenship question does not violate the Constitution, which vests broad discretion in the U.S. government in deciding how to conduct the census.

They also ruled that Ross’ decision did not violate the Administrative Procedure Act. This act requires that certain procedures be followed in administrative decisions and that agency officials offer reasoned and rational explanations for their decisions.

However, Roberts, in a part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, ruled that the Department of Commerce needed to provide further explanation for adding the question. The court said that the Department of Commerce’s claim that the citizenship question was solely designed to help Voting Right Act enforcement seemed “contrived.”

The chief justice further wrote that, “Our review is deferential, but we are ‘not required to exhibit a naivete from which ordinary citizens are free,’” quoting legendary Judge Henry Friendly.

Some court observers were surprised by the outcome.

After oral argument in April, some had predicted that five justices favored the citizenship question and that the court would allow the question for the 2020 census.

However, in May, new evidence came to light that that the citizenship question was adopted for reasons other than enforcing the Voting Rights Act.

Emails show that, for months, Wilbur Ross had inquired about adding a citizenship question, asking around to see if it was a popular idea. Commerce Department officials had tried to get other agencies involved to “clear certain legal thresholds” to ask the question. As almost an afterthought, Ross and the Department of Commerce asked the Department of Justice to send them a letter providing the Voting Rights Act rationale for the citizenship question.

None of this evidence tends to support the conclusion that enforcing the Voting Rights Act was the true reason that the Department of Commerce sought to add a citizenship question to Census 2020.

THE SUPREME COURT'S LEGITIMACY

As former New York Times Supreme Court reporter and Yale lecturer Linda Greenhouse has written, Roberts is concerned with the perceived legitimacy of the court.

Chief Justice Roberts has gone so far as to criticize President Trump for criticizing an “Obama judge.” In a November 2018 statement virtually unheard of from a chief justice, Roberts said “We do not have Obama judges or Trump judges, Bush judges or Clinton judges … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” The chief was defending the independence – and in effect the very legitimacy – of the federal courts, which he understood to be under attack by the president.

Given the weak justification for the citizenship question, rubber-stamping the citizenship question without further inquiry could well have been a stain on the court’s legitimacy.

Just days before the Supreme Court handed down the decision in the census case, an appellate court had opened the door for further investigation into whether anti-Hispanic animus played a role in the secretary’s decision to include the citizenship question.

This is a serious charge. To allow the citizenship question to be added to the census, in light of uninvestigated claims of anti-Hispanic animus and in the face of unquestionable anti-Hispanic impacts, could undermine the public trust in – and the very legitimacy of – the Supreme Court.

It has historically been challenging to facilitate immigrant participation in the census. In immigrant communities, fear of government has increased during the Trump administration. Indeed, just in the last few weeks, Trump threatened an imminent mass removal campaign, only to temporarily halt the effort at the eleventh hour.

The court might well have learned a lesson from its decision to uphold the travel ban last year, also on the last day of the term. In Trump v. Hawaii, a 5-4 majority in an opinion by Chief Justice Roberts overlooked the evidence of the Trump administration’s anti-Muslim intent in adopting the ban and upheld it based on national security grounds. The decision was widely criticized by scholars and civil rights and immigrant advocates as authorizing discrimination.

Time will tell how the Trump administration proceeds from here. However, it would appear that a rational – not a “contrived” – explanation would be required.

THE LEGAL RATIONALE

The court’s decision, for the most part, does not state explicitly – which would be unprecedented – that it sought to protect its legitimacy. And it avoids going too far in criticizing the decision to use the citizenship question.

Indeed, the court found that the decision to include the question was not “arbitrary and capricious” in violation of the law. It simply said that the Department of Commerce’s explanation was not convincing and a rational – not a “contrived” – explanation would be required.

It is telling that Roberts, who is keenly concerned about the court’s legitimacy, sided with the liberal justices in order to send the case back to the agency.

Roberts, who famously said during his confirmation hearings that a judge’s job is to call “balls and strikes,” resists the notion that the Supreme Court is a political institution – and did so, I believe, with this decision.

 

June 28, 2019

The Flores settlement: A 1985 case that sets the rules for how government can treat migrant children

[Cross-posted from the Chicago Tribune, Houston Chronicle and The Conversation]

What are the basic rules that determine how immigrant children are treated in U.S. immigration detention?

The Trump administration’s detention of migrant children in poor conditions along the U.S./Mexico border has repeatedly raised this question. The answer is a decades-old court case known as the Flores settlement. The settlement establishes the rules that the U.S. government must follow when it detains migrant children in enforcing immigration laws.

Litigation over enforcement of the Flores settlement has exploded in recent weeks. That includes a court case brought by immigrants’ rights and civil liberties groups in response to what they called the “imminent threat to the health and welfare” of migrant children in detention. U.S. border officials should have “promptly released children to their relatives and provided safe and sanitary detention conditions for all children in its custody,” said an attorney representing the groups that brought the action.

Similarly, last summer, based on the Flores settlement, a federal court barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

Conditions apparently have not improved in detention centers across the country. The three children who died while in custody since January and public outcry over the conditions of detention for the youngest migrants led to the latest court fight.

During recent litigation seeking to enforce the Flores settlement, the Department of Justice made headlines as it defended the detention conditions of migrant children. The judges of the court of appeals were incredulous at the government’s claim that soap and a toothbrush were not necessarily required for detained migrant children.

Last year, the Trump administration requested to amend the settlement to allow it to indefinitely detain migrant children. The courts consistently have denied these requests and will continue to monitor the detention of migrant children, as the Flores settlement provides for them to do.

A regulation proposed by the Trump administration in 2018 would also remove the requirements of the Flores settlement, but it has not gone into effect.

So what was the Flores case about?

Case took years

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from that region, where violent civil wars had caused tens of thousands to flee.

Central Americans arrested at the U.S.-Mexico border were held in custody – including many who sought asylum in the U.S. because they feared persecution if returned home.

Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying migrants access to counsel, taking steps to encourage them to “consent” to deportation and detaining them in isolated locations far from families and attorneys.

One suit was filed by the American Civil Liberties Union in 1985 on behalf of Jenny Lisette Flores, a 15-year-old from El Salvador. She had fled violence in her home country to live with an aunt who was in the U.S.

But Flores was detained by federal authorities at the U.S. border for not having proper documentation permitting her to stay in the U.S.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and the immigration laws. The Flores case slowly made its way to the U.S. Supreme Court.

In its 1993 ruling in the case, the court held that a regulation allowing the government to release a migrant child to a close family member or legal guardian in the United States was legal.

But the primary legacy of the case was the subsequent settlement, to which both the Clinton administration and the plaintiffs agreed in 1997.

The Flores settlement established basic standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating immigration laws.

It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can be kept in federal immigrant detention for only 20 days.

The Flores settlement is a landmark agreement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children.

Although the settlement was agreeable to the Clinton administration, the Trump administration strongly desires to detain families, including children, for periods longer than permitted by the Flores settlement.

This is an updated version of an article originally published on Aug. 2, 2018.

June 24, 2019

Book recommendation: Ghosts of Gold Mountain

Gold mountain

[Cross-posted from ImmigrationProf]

 

I strongly recommend the book Ghosts of Gold Mountain: The Epic Story of the Chinese Who Built the Transcontinental Railroad by Gordon H. Chang.  It previously was previewed on the ImmigrationProf blog.  I just finished this very readable book and found it to offer an incredibly important account of the Chinese immigrants who literally built the western end of the transcontinental railroad and forever changed the United States, revolutionizing commerce in the country and literally transforming the nation.

Chang offers a human account of the role of Chinese immigrants, who often have been rendered invisible in the history books, in the construction of the U.S. transcontinental railroad, which was completed in 1869.  He refers to the workers as "Railroad Chinese," most who hailed from southern China and performed the amazing feat of completing the transcontinental railroad through the incredibly rocky and steep Sierra Nevada mountains.  Ghosts of Gold Mountain tells us how the workers (almost all men but with a small group of women who, according to Chang, mostly worked in prostitution) lived (including what they ate and drank) in the United States (far from family and friends in China), how they were skilled railroad builders, resisted unfair treatment by their employers, and ultimately how the nation discarded them after their labor was no longer needed.  California railroad barons Leland Stanford and Charles and Edwin Crocker feature prominently in the story of the Railroad Chinese and the construction of the transcontinental railroad.  Although many initially opposed the use of Chinese labor in railroad construction, the workers proved themselves to be diligent, responsible, and dependable. 

Despite their daring achievements, the Chinese workers in the late 1800s were subject to discrimination, the Chinese exclusion laws designed to end immigration from China, and political movements led by white workers and others for their removal.  In my opinion, an understanding of how the nation treated Chinese immigrants is necessary to an understanding of the exclusion laws, which continue to influence -- through the "plenary power doctrine" and more -- immigration law and policy.

Like any good book, Ghosts of Gold Mountain got me thinking.  I did a little research after reading about the Chinese workers who settled in Truckee, California, a small town near Donner Lake, known for the ill-fated Donner Party. Not far from Truckee, the Railroad Chinese constructed a series of tunnels through granite at high altitudes, including during the harshest of winters.  Many Railroad Chinese died.  Today, Truckee, where I have vacationed for years, has almost no evidence of the Chinese settlement that was so prominent from 1840-1886.  Chinese people were basically forced to leave Truckee.  The efforts culminated in 1886; discrimination, boycotts of their businesses and labor, and violence, which later became known as the "Truckee method," basically forced the Chinese to leave the city.  In one spectacular case, a group of white defendants were acquitted of the killing of a Chinese man in 1876 in a raid on a house with Chinese workers known as the "Trout Creek Outrage."  During the same general time period, a secret white supremacist society known as the "Caucasian League" had hundreds of members in Truckee and thousands throughout the state.  At various times in the late 1800s, suspicious fires destroyed parts of the "Chinatown" section of Truckee.

In 1886, California held the Anti-Chinese Nonpartisan Convention in San Jose, which praised the intimidation fires, boycott, and exclusion —the Truckee Method — and adopted it across the state.  The Truckee method was successful because it was said to be “lawful and nonviolent.”

Support -- much of it couched as support for white workers -- for the federal Chinese exclusion laws came from California.   This historical backdrop thus influenced the Chinese exclusion laws.

 

June 18, 2019

By Playing Politics with DACA, Trump is Toying With Innocent Lives

[Cross-posted from the Globe Post]

Announced in 2012, Deferred Action for Childhood Arrivals (DACA) is one of the signature policies of the Barack Obama administration. It provided temporary relief, including work authorization, for noncitizens brought to the United States as children. Implemented within months of the 2012 election, the policy followed several years of record-setting numbers of removals and the failure of Congress to pass immigration reform.

Making immigration enforcement a cornerstone of his presidential campaign like no other in modern U.S. history, Donald J. Trump promised to dismantle DACA. That policy, however, for the most part, remains in place. Although President Trump blames the courts for barring his efforts to rescind DACA, the true reason is simpler and more sinister: the Trump administration continues to benefit from playing politics with immigrant lives.

The Supreme Court may well soon decide whether to review the lower court rulings halting DACA’s rescission. But even if the Court takes up the cases, it could still take a year or more for a final resolution. Lives will hang in the balance.

Trump’s Aggressive Immigration Measures

Exemplified by the advocacy for a wall along the U.S./Mexico border and the Muslim ban, Trump’s administration has put into place numerous aggressive immigration enforcement measures. Such measures also include ending Temporary Protected Status for Salvadorans, Haitians, Hondurans, Nicaraguans, and others, mass detention of Central Americans seeking asylum, and family separation.

The president also has sought to restrict legal immigration, specifically denigrating lawful family-based immigration as “chain migration” and calling for a new immigration system favoring skilled, educated, and English-speaking immigrants.

President Trump unquestionably sees it as politically beneficial to inject tough immigration talk into the news and, consequently, he often does so. DACA is just another political pawn in the larger immigration game.

DACA and Dreamers

Within days of taking office, President Trump acted on immigration, issuing the first executive order known as the “Muslim ban” and orders on border security and interior immigration enforcement.

Action on DACA took longer, however. Politics, pure and simple, explain the delay. While DACA’s death was rumored for months, a bipartisan group of members of Congress advocated maintaining the policy, which benefited a relatively popular group of immigrants who were in this country without authorization due to no fault of their own.

The political allure of the Dreamers can be seen in the many versions of an immigration bill known as the DREAM Act, which had the support of prominent Republicans as well as Democrats, over more than a decade.

Finally, in September 2017, then-Attorney General Jeff Sessions – not President Trump – announced the rescission of DACA. Yet DACA remains. Courts halted the rescission, questioning the reasoning offered by the Trump administration for rescinding the policy.

Courts Halt DACA Rescission

The U.S. Court of Appeals for the Ninth Circuit found that, because the administration’s claim that DACA was not lawful and simply wrong, the rescission was likely to be found “arbitrary and capricious” and in violation of the Administrative Procedure Act. It allowed an injunction barring DACA’s rescission to remain in place. A couple of weeks ago, the Fourth Circuit found that the decision to rescind DACA “was not adequately explained and thus was arbitrary and capricious.”

The Trump administration could quickly remedy what the courts said was missing: a rational explanation for rescinding the policy. The administration, for example, could say that Congress is the most appropriate branch to address the legal status of the DACA recipients. Importantly, no court has held that DACA is required by the immigration laws or that there is some other legal right to DACA relief. Rather, the courts have held that the Trump administration has not adequately explained its reasoning for dismantling DACA, an easily cured defect.

The Trump administration has not offered an adequate explanation because of politics. The young noncitizens who benefited from DACA are politically active and popular. There is little political upside to the administration to push to end DACA, which has some Republican support. The political benefits of blaming “liberal” courts for keeping DACA alive outweigh any benefits of actually abolishing the policy. In this vein, Trump frequently blames the courts and Congress for sidetracking his efforts to build the border wall, punish “sanctuary cities,” and the like.

DACA recipients and their allies have been active. Immigrant advocates have allowed their voices to be heard. Legal challenges to the DACA rescission, and many other Trump policies, have been largely successful. In early June, the U.S. House of Representatives passed the DREAM and Promise Act of 2019, which would provide relief to young undocumented immigrants, DACA recipients, and holders of Temporary Protected Status.

Human Impact

Immigration is a powerful political issue for President Trump. Although it energizes his base, the administration’s tough immigration stands have human impacts. The efforts to rescind DACA have frightened hundreds of thousands of DACA recipients who see their ability to remain in the United States – the only nation that many of them have ever truly known – placed in question.

Although the courts have required current DACA recipients to renew their relief, some recipients declined to renew, fearing possible removal if they sought any kind of relief from the U.S. government. In addition, the court injunctions did not require the administration to accept any new DACA applications. Thus, even though DACA has not been rescinded, it has been limited, and young immigrants have been harmed.

DACA unquestionably is an important issue. Sadly, the administration continues to play politics with peoples’ lives. Immigrants live and work in – and unquestionably are part of – our communities. Harsh rhetoric questioning their humanity, claiming that the nation is being invaded, and more will offer political benefits to the president but injure real people.

What the United States truly needs is for Congress to overhaul the immigration laws. The nation needs a 21st-century system for legal immigration. It needs a path to permanent legal status for undocumented immigrants, DACA recipients, and Temporary Protected Status holders. Until Congress acts, the nation will continue to see human casualties in the war on immigrants.

 

June 18, 2019

Want to See My Genes? Get a Warrant

[Cross-posted from the New York Times]

Someone broke into a church in Centerville, Utah, last November and attacked the organist who was practicing there. In March, after a conventional investigation came up empty, a police detective turned to forensic consultants at Parabon NanoLabs. Using the publicly accessible website GEDmatch, the consultants found a likely distant genetic relative of the suspect, whose blood sample had been found near the church’s broken window.

Someone related to the person on GEDmatch did indeed live in Centerville: a 17-year-old high school student. Alerted by the police, a school resource officer watched the student during lunch at the school cafeteria and collected the milk carton and juice box he’d thrown in the garbage. The DNA on the trash was a match for the crime scene evidence. This appears to be the first time that this technique was used for an assault investigation.

The technique is known as genetic genealogy. It isn’t simply a matter of finding an identical genetic match between someone in a database and evidence from a crime scene. Instead, a DNA profile may offer an initial clue — that a distant cousin is related to a suspect, for instance — and then an examination of birth records, family trees and newspaper clips can identify a small number of people for further investigation.

The identification of Joseph DeAngelo in the Golden State Killer case also relied on genetic genealogy. He was charged with 26 counts of murder and kidnapping after a genealogist helped investigators in California identify a third cousin of Mr. DeAngelo’s through GEDmatch and other genealogical records.

While there may be broad public support for a technique that solved serial murders, just because technology allows for a new type of investigation doesn’t mean the government should be allowed to use it in all cases.

Genetic genealogy requires lots of DNA samples and an easy way to compare them. Americans have created millions of genetic profiles already. A 2018 study published in Science predicted that 90 percent of Americans of European descent will be identifiable from their DNA within a year or two, even if they have not used a consumer DNA service. As for easy access, GEDmatch’s website provides exactly this opportunity. Consumers can take profiles generated from other commercial genetic testing services, upload them free and compare them to other profiles. So can the police.

We should be glad whenever a cold case involving a serious crimes like rape or murder can be solved. But the use of genetic genealogy in the Centerville assault case raises with new urgency fundamental questions about this technique.

First, there is now no downward limit on what crimes the police might investigate through genetic genealogy. If the police felt free to use it in an assault case, why not shoplifting, trespassing or littering?

Second, there’s the issue of meaningful consent. You may decide that the police should use your DNA profile without qualification and may even post your information online with that purpose in mind. But your DNA is also shared in part with your relatives. When you consent to genetic sleuthing, you are also exposing your siblings, parents, cousins, relatives you’ve never met and even future generations of your family. Legitimate consent to the government’s use of an entire family tree should involve more than just a single person clicking “yes” to a website’s terms and conditions.

Third, there’s the question of why the limits on Americans’ genetic privacy are being fashioned by private entities. The Centerville police used GEDmatch because the site owners allowed an exception to their own rules, which had permitted law enforcement access only for murder and sexual assault investigations. After user complaints, GEDmatch expanded the list of crimes that the police may investigate on its site to include assault. It also changed default options for users so that the police may not gain access to their profiles unless users affirmatively opt-in. But if your relative elects to do so, there’s no way for you to opt out of that particular decision. And what’s to stop GEDmatch from changing its policies again?

Finally, the police usually confirm leads by collecting discarded DNA samples from a suspect. How comfortable should we be that a school resource officer hung around a high school cafeteria waiting to collect a teenager’s “abandoned” DNA?

All of these issues point to one problem: Police use of genetic genealogy is virtually unregulated. Law enforcement agencies and cooperating genetic genealogy websites are operating in a world of few limits. There are not only few rules about which crimes to investigate, but also unclear remedies in the case of mistakes, the discovery of embarrassing or intrusive information, or misuse of the information.

If these concerns sounds similar to other technology and privacy problems we’re facing, they should. Our genetic and digital identities raise similar questions of autonomy, civil liberties, and intrusion by public and private entities.

Without legal limits, genetic genealogy will become a more popular tool for the police. Rather than wait for the courts to deal with difficult and novel issues about genetic surveillance and privacy, state legislatures and attorneys general should step in and articulate guidelines on how far their law enforcement agencies should go. Congress and the Federal Trade Commission should take further steps to protect the privacy and security of consumer genetic data.

If the police are to be given unlimited access to the genetic information of your entire family tree, they should have it at the end of a public debate, not by default.

June 10, 2019

Supreme Court rulings come at a cost in public confidence

[Cross-posted from The Hill]

 

Costs cumulate. Not only insofar as their separate consequences add up, but also in the sense that often the cumulative effect of independent actions is greater than their sum total might suggest.

This is true of regulation; indeed, the classic conservative critique of big government holds that while each one of several regulations may seem justified when examined under a cost-benefit analysis in isolation, government often substantially underestimates the total burden the regulatory state imposes on individuals and businesses. The concern here is not simply that individual compliance costs add up — although they surely do. It is that, cumulatively, too much regulation is stifling and drains energy and initiative from the private sector.

But what is true for legislative regulation is also true for constitutional adjudication. This is a basic issue the Supreme Court needs to consider as it decides important cases this term that seek federal judicial intervention to police the excessively partisan gerrymandering of congressional district lines by elected officials. In short, the Justices need to focus not only on these cases in isolation, but on the cumulative consequences of the court’s decisions in recent years on public confidence in American democracy.

In 2010 in Citizens United v. Federal Election Commission, the court ruled that government was powerless to prohibit corporations and unions from making independent expenditures to endorse or oppose candidates running for electoral office. According to the court, these expenditures, however massive they might be, and however substantial the access and influence such donors received in return, would not “cause the electorate to lose confidence in our democracy.” That prediction seems dubious in hindsight. It seems clear that these now-permissible expenditures, combined with other factors, have convinced many voters that the electoral game is rigged in favor of wealthy and powerful interests in our society.

But Citizens United is just one debit in the public-confidence-in-the-electoral-process side of the ledger. In 2013, in Shelby County v. Holder, the court essentially eliminated the pre-clearance element of the Voting Rights Act of 1965, a provision that required certain states and local governments, because of their history of race discrimination, to seek clearance from the federal government before they made changes to their electoral practices. Because of that ruling, numerous laws and executive decisions that would have been blocked by the pre-clearance requirement have been implemented and have made voting more difficult. Again, the impact of the decision is to further erode public trust in the political system.  

The court’s willingness to uphold Voter ID laws in recent years is yet another withdrawal from the public confidence bank. 

The merits of each of these decisions can be debated in isolation. But the aggregate, compounding impact of these cases, and the private and public conduct they permit, is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.

Foundational principles are at stake here. The legitimacy of government depends on the consent of the governed. For many Americans, purported consent based on what appears to be an unfair, undemocratic electoral process conveys no such legitimacy.

It is not difficult to appreciate the court’s reluctance to wade into the districting thicket, and to try to develop judicially manageable ground rules for reviewing the drawing of district lines. But if the court doesn’t try — if it continues to refuse to adjudicate challenges to gerrymandered districts — and allows grossly politically manipulated district lines to stand, no matter how egregiously unfair and undemocratic they may be, it risks reaching the tipping point where no national governmental institution, including the court itself, will be able to command the respect of the polity.

Chief Justice Roberts once famously analogized the role of the court to that of a baseball umpire calling balls and strikes. In all sports, referees and umpires — in addition to policing garden-variety violations of the rules — must be willing to call out conduct that compromises the essential nature and spirit of the game. Permitting egregious gerrymandering in a democracy is like allowing the home team to throw bean balls at opposing players. If umpires allow home teams to engage in foul play without sanction, we should not be surprised when neither the umpire’s credibility nor the outcome of games commands respect.