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Monday, April 19, 2004

US Supreme Court votes 9/0 to AFFIRM first Texas redistricting case, but the Houston Chronicle claims the Court "refused to hear" it

In the space of a two-sentence lede in a story tonight headlined "U.S. Supreme Court hands defeat to Texas Democrats," the Houston Chronicle's R.G. Ratcliffe managed both to demonstrate his liberal bias and to completely misreport what the Court did today about Texas redistricting:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership ran over them in a push to pass congressional redistricting last year.

The high court refused to hear a three-judge panel decision against Senate Democrats last year when they unsuccessfully sued to halt a redistricting debate.

"Ran over them"?  And some people seriously ask, What liberal media bias?

If this were an op-ed, or even something labeled "news analysis," then that sort of value judgment might be acceptable.  An equally slanted version of this sentence from the opposite (that is, conservative) perspective might read: 

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership finally rescued the principle of majority-vote representative democracy from legislative anarchy in their efforts to meet the Texas Legislature's constitutional duty to pass a congressional redistricting plan last year.

I think that's actually closer to the truth.  But how about something that's factual without implying any value judgments or grinding any political axes, like this:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership overcame the Dems' lengthy procedural efforts to block a simple majority-rule vote in the Republican leadership's push to pass congressional redistricting last year.

Having demonstrated his obvious political bias in his choice of loaded language for his first sentence, however, Mr. Ratcliffe proceeded to completely misreport what the Supreme Court actually did! 

Any first-year law student who's studied basic citation form or gotten a passing grade in his federal procedure class — and certainly any of the fine lawyers who are available, even eager, to help explain things to the Chronicle staff — would take one look at what the Court actually wrote today and immediately recognize that this language is emphatically not a "refus[al] to hear a three-judge panel decision against Senate Democrats last year":

Appeal — Summary Disposition

The judgment is affirmed.

This item was at the very top of today's list of decisions — all by its lonesome under a bold-face heading.  You'd think that alone would give a reporter who gives a damn about getting his facts straight some sort of clue that Barrientos v. Texas wasn't a "usual sort of 'appeal'" — but that apparently didn't faze Mr. Ratcliffe for a moment.

Indeed, ff you scan down through the fifteen pages of other orders also issued today, you'll soon come to a long list of hundreds of ordinary (non-Voting Rights Act) cases that the Supremes did "refuse to hear" — that is, cases in which the Justices exercised their discretion to refuse to review those cases on their merits.  All of those cases were effectively ended by the Supreme Court's denial of a petition to issue a "writ of certiorari" — that "writ" being the technical name of the type of Supreme Court order it issues when at least four Justices have agreed to hear what's commonly (if inaccurately) called an "appeal" from a lower court (usually one of the United States Courts of Appeals, a/k/a the "Circuit Courts" like the Fifth Circuit or the Ninth Circuit).  Any first-year law student learns that "cert. denied" simply means that the Court refused to consider the merits of the court below's decision.  A denial of certiorari therefore has utterly no precedential value; it doesn't mean the decision of the court below was right or wrong.  It's not only mistaken, but unethical for a lawyer to suggest otherwise.

Unlike all those other cases resolved today, Barrientos v. Texas wasn't a discretionary appeal made through an application for a writ of certiorari, but — as I've repeatedly blogged before (in the most detail, with links to the statutes, here and here) — an "appeal as of right" from a Voting Rights Act three-judge panel, a type of decision that Congress, by statute, requires the Supreme Court to fully review on its merits.  In other words, by statute, all nine Justices of the Supreme Court had to vote — not on the question of "Do we want to hear this?" but on the very different question of "Was the decision of the three-judge panel right or wrong on the merits?" 

There were no dissents — the Dems couldn't pick up even a single vote.  Instead, all nine Justices necessarily agreed not only that what the three-judge panel had written and ruled was proper and correct on the merits, but that there were no close questions at issue, and nothing to add to what the three-judge panel had already written.  And in fact, from now on, any lawyer who refers to that three-judge panel's decision will have to include in his citation a special notation — aff'd mem., 541 U.S. ___ (2004) — because the Supreme Court has effectively adopted the three-judge panel's opinion as its own.

In the simplest possible words: The Supreme Court didn't decide not to "hear" this case.  They had to consider it fully and on its merits.  When they did so, they unanimously decided that the three-judge panel's decision was correct.  That's what "summary disposition: affirmed" means in layman's terms.  The Court thought this was a no-brainer.  It's the Supreme Court equivalent of a prize fight — not one that's cancelled, but one that's a knockout in the first ten seconds of the first round.

Mr. Ratcliffe's misreporting of this basic, fundamental fact is all the more embarrassing when you look at other media reports.  The Dallas Morning News and Washington Post managed to avoid this confusion, as did the Associated Press report reprinted in the Austin American-Statesman and the Fort Worth Star-Telegram.

I don't know where this story will be in the print edition of the Chronicle tomorrow (and indeed, the Chron is notorious for monkeying with its online links without leaving clear tracks when it's done so) — but as I write this, it's on the Chron website as the first of "Today's Top Stories."  It's bad enough that this "news report" is obviously biased, but it's incalculably worse that it's just flat wrong on the core event it purports to have reported.

How very, very pathetic.


Update (Tues Apr 20 @ 5pm):  No response from the Chron to my outraged email ... of course.  Also, the Daily Texan joins the Chron in misreporting yesterday's result:

The U.S. Supreme Court declined on Monday to hear an appeal by 11 Texas Democratic senators challenging redistricting legislation that passed during last fall's special session.
Bob Richter, spokesman for House Speaker Tom Craddick, R-Midland, said the court's decision, which has the power of a ruling, reaffirms the redistricting effort.

Yes, it had the "power of a ruling" because it was a ruling.  Duh.

Finally, my exchange of comments on Charles Kuffner's post about this decision is an excellent illustration of the Chron's habitual disrespect for the integrity of hyperlinks.  Kuff's post and comments reveal that the Chron originally had posted the AP wire story on yesterday's decision, then replaced the AP version with Ratcliffe's article at the very same URL.  Not only does this create confusion, but it proves that the Chron replaced a correct report about the decision with something contrary and incorrect.  More's the pity.

Update (Tues Apr 20 @ 11pm):   Prof. Hasen, whose post about yesterday's ruling I linked in a comment below, was kind enough, in response to an email from me, to link this post on his blog, and in his email reply to me to very impressively and definitively answered a question I'd posed to him regarding the precedential effect of summary affirmances.   Per Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979) (internal citations omitted):

[T]he precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.  Questions which "merely lurk in the record" are not resolved, and no resolution of them may be inferred.

This confirms that the summary affirmance yesterday in Barrientos isn't likely to affect Vieth or Jackson v. Perry.  But it's still considerably more powerful than a "cert. denied" in the unlikely event that a future court should ever be called upon to consider something like the suspension of the "blocker bill" procedure during legislative redistricting.

Posted by Beldar at 10:19 PM in Current Affairs, Law (2006 & earlier), Mainstream Media, Politics (2006 & earlier), Texas Redistricting | Permalink


Other weblog posts, if any, whose authors have linked to US Supreme Court votes 9/0 to AFFIRM first Texas redistricting case, but the Houston Chronicle claims the Court "refused to hear" it and sent a trackback ping are listed here:

» Supremes deny Senate case on redistricting from Off the Kuff

Tracked on Apr 20, 2004 6:55:54 AM

» Beldar Corrects The Comical from PubliusTX Weblog

Tracked on Apr 20, 2004 7:41:00 AM

» Beldar Blog on Coverage of the Texas Redistricting Case from Election Law

Tracked on Apr 20, 2004 11:04:28 PM


(1) Vince G made the following comment | Apr 20, 2004 9:03:25 AM | Permalink

I assume Jackson vs Perry is also an appeal that the Supreme Court needs to decide on its merits. Is this true?

(2) Beldar made the following comment | Apr 20, 2004 4:24:51 PM | Permalink

Yep, you're absolutely right, it is. Here's the Court's docket sheet for Jackson v. Perry, which indicates that the State's response to the Dems' jurisdictional statement is due on May 6, 2004. After that response (which will probably not contest mandatory jurisdiction, but rather move for immediate affirmance on the merits) is filed, the Court might enter a short order saying "probable jurisdiction noted" if it intends to accept further briefing; or it may, as it did yesterday on the docket sheet for Barrientos, indicate that the Court has skipped straight to a vote on the merits without further briefing or oral argument.

In all probability, though, the Court's decision on Jackson v. Perry is going to be controlled by what it does with Vieth, the Pennsylvania gerrymandering case that was argued last fall. So it's unlikely that Jackson v. Perry will generate either oral argument or much, if any, written opinion — just a vote on the merits that will either be a summary affirmance or a summary reversal-and-remand for reconsideration by the three-judge panel using whatever new precedent, if any, is set by Vieth.

My bet is still on the former, based on the denial of the stay application last January in Jackson v. Perry, which occurred after Vieth had been argued and presumably after the tentative votes in that case had been cast in the Justices' secret post-argument conference.

I tend to agree with Prof. Rick Hasen's observation (the revised one, after readers reminded him what Barrientos was actually about) in his Election Law blog that yesterday's decision in Barrientos doesn't add much predictive value for Vieth or for Jackson v. Perry. Setting aside the rhetoric from the Dems' dog-and-pony show over Lt. Gov. Dewhurst's suspension of the Texas Senate's (badly misnamed) "two-thirds rule" for the third special session last summer, Barrientos was awfully weak tea to begin with, and very well might have been summarily affirmed even if Vieth and Jackson v. Perry are about to be reversed.

(3) Eric made the following comment | Apr 20, 2004 8:46:03 PM | Permalink

As long as you're doing a roll call of state newspapers, you can add the Midland Reporter-Telegram to the list of those who did a decent job of accurately reporting on the Court's ruling, despite a shaky start with its first paragraph.

(4) Beldar made the following comment | Apr 20, 2004 9:15:35 PM | Permalink

Thanks for the comment, Eric! As it happens, I have a warm place in my heart for the Reporter-Telegram because I used to sell subscriptions for it in my hometown, Lamesa. The first paragraph you refer to —

The Supreme Court refused Monday to consider if Texas Republicans went too far last year in their strategy to enact new GOP-friendly congressional boundaries.

— appears to be drawn from the AP report, and indeed it's capable of misleading folks a bit. But what that report probably meant to say was that the three-judge panel, and SCOTUS, refused to second-guess the Texas Senate's interpretation and application of its internal rules. The three-judge panel evidenced that "refusal" by denying the Democratic plaintiffs' requests for injunctive relief, and SCOTUS by unanimously affirming the three-judge panel's decision.

(5) kevin whited made the following comment | Apr 20, 2004 10:04:40 PM | Permalink

Beldar: If you DO happen to receive a response from James T. Campbell, could you let me know?

I have a 100% success rate at not getting a response from him to substantive emails!

(6) kevin whited made the following comment | Apr 22, 2004 8:11:37 AM | Permalink

I've been watching the corrections section in the Comical, and they still haven't run one. This just CRIES for a correction. But I would think at this point, they're just not going to bother.

Nice catch on your part, though. Between bloggers and talk radio, maybe we can eventually start to hold that paper to account. Houston deserves better.

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