(photo: J. Scott Applewhite, Associated Press; photo illustration: Steve Straehley, AllGov)
Two U.S. Supreme Court rulings on Monday will have a lasting effect on California although the state was not a party to either one.
The court fell one vote shy of eviscerating Arizona's anti-gerrymandering law, and by extension California's, when it upheld the creation of a redistricting commission by voters. The court, by the same 5-4 margin, voted to let Oklahoma execute prisoners with a lethal injection that could clear the way for California to do the same.
In a third case of avid interest in California but more indirectly related to its practices, the court invalidated fossil fuel power plant regulations from the U.S. Environmental Protection Agency (EPA), ruling the agency should have considered the cost to industry ($9.6 billion annually) during its initial decision, and not just later when the regulations were actually written.
That ruling doesn’t prevent the EPA from restarting the regulatory process, tossing in the data demanded by the court and reaching the same conclusions. But it could take years. Meanwhile, some of the worst polluters in the nation who have refused to retrofit or otherwise curb their noxious ways will be allowed to keep it up. The government futily argued in the case that the country would save $37 billion annually from cleaner air and better health.
The redistricting case was filed after Arizona voters created an independent commission in 2000 to draw congressional districts, rather than let state lawmakers work their gerrymandering magic. The Constitution expressly gives legislatures the power to shape election laws, and this was a voter-initiated ballot measure.
If the court found the vote unconstitutional, California’s own redistricting commission would be unconstitutional and probably so would the state’s new “top-two” primary, also initiated by a ballot measure, not the Legislature. Ten states have redistricting commissions to take the highly partisan, and historically disgraceful, process out of lawmakers’ hands, 18 let voters initiate constitutional amendments and 21 let them initiate legislation.
All of that would be highly questionable if Justice Anthony Kennedy, a frequent swing vote, had swung the other way. Justice Ruth Bader Ginsburg wrote the majority opinion, which was opposed by the court’s four most conservative members.
Ginsburg wrote that the term “Legislature” had a broad meaning that included the people’s power to legislate through direct democracy. Chief Justice John Roberts argued in his dissent that “Legislature” had never been interpreted that way before.
The conservatives prevailed in the lethal injection case. Justice Samuel Alito, writing for the majority with Kennedy in tow, said the lethal three-drug cocktail Oklahoma wanted to use on Death Row prisoners might be flawed, but, “Holding that the 8th Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Critics of the three-drug method maintain that it is cruel and unusual punishment because one of the drugs, pancuronium bromide, can mask severe pain by paralyzing the prisoner.
“(It is) a pretty strong green light for California to go forward with whatever lethal injection protocol fits their own regulations and interests,” Ohio State University law professor Douglas Berman told the San Jose Mercury News.
California has more than 700 people on Death Row and no prisoner has been executed since 2006. The state’s last attempt at using a three-drug injection was rejected in 2013 by the California First District Court of Appeal, which recommended it come up with a more humane one-drug alternative.