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In Evenwel, there is a fascinating back-and-forth between Justice Ginsburg and Justice Alito over how to understand actions taken by the framers of the Constitution in 1787, and the framers of the 14th Amendment in 1866. In short, Justice Ginsburg looks to this history for evidence that the framers in both periods favored representation based on total population, rather than on the voting population. From this, she bolsters the principle of “one person, one vote,” a doctrine that lacked any legitimate originalist pedigree when introduced in the 1960s.

Justice Alito disputes any effort to derive an equal representation theory, because the framers at both of these critical junctures of American history were not concerned with theories–they were concerned with “raw political power.”

When the formula for allocating House seats was first devised in 1787 and reconsidered at the time of the adoption of the Fourteenth Amendment in 1868, the overwhelming concern was far removed from any abstract theory about the nature of representation. Instead, the dominant consideration was the distribution of political power among the States.

In 1787, the Framers struck a fraught compromise–indeed it was the “Great Compromise”–whereby States would receive at least one representative, plus more based on population, and two Senators selected by the legislature. Justice Thomas aptly describes this compromise:

As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs.

In no sense is either based on a total population rule, because the smallest state will have one representative, and the next smallest state will also have one representative. The Senate is entirely anti-democratic, and was designed with that intent in mind. Same for the electoral college, which is constituted based on the number of representatives and senators.

Alito explains with some references to Hamilton and Madison:

As is clear from the passage just quoted, Hamilton (ac­cording to Yates) thought the fight over apportionment was about naked power, not some lofty ideal about the nature of representation. That interpretation is confirmed by James Madison’s summary of the same statement by Hamilton: “The truth is it [meaning the debate over appor­ tionment] is a contest for power, not for liberty. . . . The State of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pa. having 400,000.” Id., at 466. Far from “[e]ndorsing apportion­ ment based on total population,” ante, at 9, Hamilton was merely acknowledging the obvious: that apportionment in the new National Government would be the outcome of a contest over raw political power, not abstract political theory.

In 1866, Justice Alito continues, Section 2 of the 14th Amendment was drafted the way it was to prevent Southern states from claiming too much power due to the freed, but disenfranchised slaves–now counted as a full people–who would now count towards full representation.

After the Civil War, when the Fourteenth Amendment was being drafted, the question of the apportionment formula arose again. Thaddeus Stevens, a leader of the so-called radical Republicans, unsuccessfully proposed that apportionment be based on eligible voters, rather than total population. The opinion of the Court suggests that the rejection of Stevens’ proposal signified the adop­ tion of the theory that representatives are properly under­ stood to represent all of the residents of their districts, whether or not they are eligible to vote. Ante, at 10–12. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.

The goal (quite plainly) was to prevent Northern states from losing too much representation. Alito also makes an important point on Section 2 of the 14th Amendment, and indeed the 3/5 Clause, which most people don’t understand: Granting full representation to Southern blacks in 1787–who could not vote–would have given Southern states a disproportionate share of the representation in Congress.

As Stevens spelled out, if House seats were based on total population, the power of the former slave States would be magnified. Prior to the Civil War, a slave had counted for only three-fifths of a person for purposes of the apportionment of House seats. As a result of the Emancipation Proclamation and the Thirteenth Amendment, the former slaves would now be fully counted even if they were not permitted to vote. By Stevens’ calculation, this would give the South 13 addi­ tional votes in both the House and the electoral college.

This is why deeming slaves 3/5 was actually a compromise in favor of the Northern states. Had the slaves been deemed full people, the Southern states would have had even more representatives in Congress, and in turn the electoral college. The slave trade–which the Constitution protected until 1808–would not have been repealed given the representative-bonus afforded by a 5/5 clause.

In two footnotes, Justice Ginsburg offers a rejoinder to Alito. First, in FN 9, she argues that Hamilton’s statements can be cited, notwithstanding the “political controversies of his day.” To drill the point home, she cites Justice Scalia’s opinion in Printz.

Notably, in the statement JUSTICE ALITO quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898, 910–924 (1997).

The primary rejoinder appears in FN 11. RBG explains that even if “politics played a part” in the decision, she can still derive a “prinicpled argument.”

JUSTICE ALITO asserts that we have taken the statements of the Fourteenth Amendment’s Framers “out of context.” Post, at 9. See also post, at 12 (“[C]laims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the national government.”). Like Alexan- der Hamilton, see supra, at 9, n. 9, the Fourteenth Amendment’s Framers doubtless made arguments rooted in practical political reali- ties as well as in principle. That politics played a part, however, does not warrant rejecting principled argument. In any event, motivations aside, the Framers’ ultimate choice of total population rather than voter population is surely relevant to whether, as appellants now argue, the Equal Protection Clause mandates use of voter population

I suppose it’s true–“We are all originalists now.” Justices Ginsburg and Alito are now battling over how to interpret statements from Madison, Hamilton, and Thaddeus Stevens.

In Evenwel v. Abbott, the Supreme Court considered the “One Man, One Vote” doctrine, articulated in Chief Justice Warren’s 1964 decision in Reynolds v. Sims. As Andrew Grossman pointed out during the Federalist Society call on the case, Justice Ginsburg’s majority opinion in Evenwel represents a triumph or sorts for originalism–the doctrine championed by her late, great colleague, Justice Scalia.

Part II.A of her opinion (from page 8-15), which focuses primarily on history, begins:

We begin with constitutional history.

In Footnote 7, Ginsburg engages in a back-and-forth with Justice Alito over the import of statements from Hamilton and Madison. And, citing Justice Scalia’s opinion in Printz, Ginsburg champions Hamilton:

Notably, in the statement JUSTICE ALITO quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898, 910–924 (1997).

In 2011, Justice Ginsburg offered this quasi-defense of her originalism:

“I have a different originalist view. I count myself as an originalist too, but in a quite different way from the professor,” she said. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘we the people’ were white property-owning men to what it has become today. That it is ever more embracive including Native Americans … people who were once held in human bondage, women, aliens who come to our shores.  So ‘we the people’ has a marvelous diversity which it lacked in the beginning.”

My how far we’ve come. Consider one of the more famous passages from Reynolds (which was quoted from Gray v. Sanders):

“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

This is what passed for originalism in 1964, or something like that.

We’ve come a long, long way.

 

 

We last updated the FantasySCOTUS predictions on January 25, 2016–although only two months ago, it feels like a lifetime ago. Since then, we lost Justice Scalia, and the art of predicting Supreme Court cases has entered a new phase. Since March 1, the Court has decided 9 cases (we do not include the cases that split 4-4, because we do not know how the votes broke down–though we can certainly guess, such as in Friedrichs).

The Crowd and {Marshall}+ both predicted the outcome in Tyson Foods v. Bouaphakeo and Sturgeon v. Frost. The crowd additionally predicted Americold Rlty Trust v. ConAgra Foods, Evenwell v. Abbot, and Nichols v. U.S. Neither predicted Lockhart v. U.S., Gobeille v. Liberty Mutual, NEC v. Parker, and Luis v. U.S.

So far, after 24 decided cases, the Crowd has a 67% case accuracy rate and the algorithm has a 63% accuracy rate. Our expert crowd is surging at a 79% accuracy rate.

We are currently considering different means of representing the 4-4 affirm, as we will likely get many more this year than we have before.

On Monday 4/4, I attended an event co-sponsored by the John Marshall Law School’s Federalist Society and American Constitution Society chapters. The topic was”Which matters more to Chief Justice Roberts: The Constitution or the Supreme Court as an institution.” This is a topic I alluded to in my Weekly Standard article with Randy Barnett. I was joined by Prof. Steven Schwinn, and Gabe Roth of Fix the Court. At one point, as I ridiculed John Marshall’s silly opinion in Marbury (he should have recused, and he bungled Article III), Gabe reminded me not to mock the namesake of the law school that hosted us. Point taken, although I recently criticized Justice Brennan at Rutgers Law School, and was gently chided by the Dean. I’d do it again.

Here is the audio, and some photos of the event:

 

The lecture notes are here.

 

This is the section of the Texas code that governs equitable distribution of community property after a divorce:

Sec. 7.001.  GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.

Sec. 7.002.  DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1)  property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2)  property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

(b)  In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:

(1)  property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or

(2)  property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.

(c)  In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

(1)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or

(2)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.

Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:

Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.

When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.

O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.

Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.

Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.

“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.

McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.

“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.

George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.

“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”

The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.

The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.

“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.

 

Under California community property law, gifts given by the husband to a mistress, without the wife’s permission, can be set aside by the wife. This is precisely what happened to Donald Sterling, former owner of the Los Angeles Clippers, who gave millions of dollars of gifts to his mistress V. Stiviano. Shelly Sterling, Donald’s wife, sued Stiviano. In 2015, a court ruled that Stiviano was required to pay back more than $3 million to the Sterlings.

Former Los Angeles Clippers owner Donald Sterling had no right to spend millions of dollars to give luxury cars, a duplex and other gifts to his alleged mistress, V. Stiviano, an attorney for Sterling’s wife told a Los Angeles County judge Wednesday.

The lawyer’s assertion came during opening statements of a trial in which Shelly Sterling is attempting to recoup more than $3 million in gifts that she alleges Stiviano seduced Donald Sterling into giving her.

Stiviano was at the center of last year’s controversy that led to Donald Sterling being stripped of his ownership of the NBA team after she recorded him making racially charged remarks.

Attorney Pierce O’Donnell, who represents Shelly Sterling, told Superior Court Judge Richard L. Fruin Jr. that Donald Sterling used community property — assets he legally shares with his wife — to pay for gifts to Stiviano, including a Ferrari, two Bentleys, a Range Rover, a duplex near Beverly Hills and a Paris shopping spree.

“He’s an older, vulnerable man, susceptible to the wiles of a younger woman, like the defendant,” O’Donnell told the judge.

Stiviano, seated with her attorney in the downtown L.A. courtroom, glared and shook her head.