In his characteristically bumptious manner, Supreme Court Justice Antonin Scalia lamented the lack of geographic diversity among his colleagues last week in his opinion dissenting from the Court’s same-sex marriage ruling. There are no justices from the South or West, he harrumphed—a judgment he then qualified, in deference to the fact that the author of the majority opinion, Anthony Kennedy, is Californian, with a verbal wave of the hand. “California does not count,” he wrote, as a real Western state.
Actually, as the region that’s home not just to California but also to Washington, Oregon and Hawaii, the American West is probably more in favor of legalizing same-sex marriage than any region but the Northeast. Still, a case can be made that Kennedy’s jurisprudence has often been shaped by his California-ness, and seldom more so than in the past week.
Justices, like humans, have multiple influences, of course. Certainly, Kennedy’s siding with the Court’s four conservatives on Monday to strike down the Environmental Protection Agency’s rules limiting toxic emissions from coal-powered plants runs counter to the environmental sentiments of most Californians. It’s been widely noted, however, that as someone who spent most of his pre-Court life in Northern California, and who has a vacation home in famously gay-and-lesbian-friendly Palm Springs, Kennedy has long since grown comfortable living amid gays and lesbians, whose freedom from governmental oppression and discrimination he has championed in a string of landmark rulings.
But perhaps nothing so highlights Kennedy’s status as a California guy than his siding on Monday with the Court’s four liberals in upholding Arizona’s law that created a nonpartisan redistricting commission, free from the control of the state legislature. The Court’s ruling was generally welcomed by Democrats, independents and good-government types, while attacked by Republicans, including the four justices to Kennedy’s right.
But not in California.
The challenge to the Arizona law was brought by that state’s Republican legislators, who clearly believed that the state’s redistricting commission had drawn lines that enabled the Democrats to win more races than they would have had the line-drawing power remained with the GOP-run legislature. That wasn’t the argument the GOP malcontents presented to the Court, of course. They contended, rather, that the Constitution vested in the legislature, however indirectly, the power to redistrict, so voters couldn’t take that power away, as Arizonans had when they passed an initiative transferring that power to a nonpartisan commission.
Only one other state has had its voters enact a ballot measure that also took redistricting out of the legislature’s hands and gave it to a nonpartisan commission: California. Only, in California, it was Republicans—specifically, then-Governor Arnold Schwarzenegger—who promoted the 2008 ballot measure, as it became clear to his fellow GOPniks that their party had fallen so deeply out of favor with state voters that the Democrats would control the legislature for years, if not decades, to come. Unless the power to redistrict was stripped from its control, Democrats would be drawing the lines for a great many election cycles.
The lines that California’s new commission drew were put in place in 2011, and with no regard to protecting incumbents of either party, a number of prominent members of Congress, such as Democrat Howard Berman and Republican David Dreier, saw their districts effectively dismantled. Nonetheless, in the 2012 election Democrats picked up a House seat and a number of state legislative seats, simply because the party’s advantage in California has grown so wide, and the number of heavily Democratic Latino voters has increased so much in virtually every corner of the state, that any new line-drawing, unless intended to protect Republican incumbents, will likely result in more Democratic victories.
Nonetheless, from Republicans’ perspective, the new lines were still better than any that the Democratic legislature and Democratic Governor Jerry Brown would have approved. Accordingly, in January of this year, the state’s three living former Republican governors—George Deukmejian, Pete Wilson and Schwarzenegger—along with the California Chamber of Commerce and the state’s biggest GOP donor, Charles Munger, Jr., filed an amicus brief with the Court that argued against the case brought by their fellow Republicans in Arizona. The “Arizona litigation jeopardizes the will of the California electorate and its embrace of fair redistricting and competitive elections,” Allan Zaremberg, the head of the Chamber, told the Los Angeles Times.
Deukmejian, Wilson, Schwarzenegger—these are all Kennedy’s kind of Republicans, either genuine moderates like Schwarzenegger, moderates by historic GOP standards like Wilson, or at least moderate when compared to the Tea Party, like Deukmejian. The GOP’s brief was clearly aimed at Kennedy, blood of their blood, flesh of their flesh.
I’m not saying it was decisive—who besides Kennedy himself can tell? But in this case—probably more than in his deliberations on same-sex marriage—Kennedy all but outed himself, not just as a Californian, but a California Republican. That crazy Tony may just have had a point.