Benisek v. Maryland Recap – The Forgotten Early 1900s Congressional Statute and How this Lafollette “Progressive Era” Reform, Supported Federal Judicial Interests against Political Party Gerrymandering
By Michael Wein
Last June in Ocean City, Maryland, the Supreme Court panel discussion for the Maryland State Bar Association (MSBA) convention, (which included guest panelists Kelsi Corkran, Prof. Shon Hopwood and Beth Brinkman) seemed to agree on one thing–the two pending political gerrymandering cases of Benisek v. Maryland and Gill v. Whitford, were likely to be the blockbuster decisions for the Court. That didn’t happen last year, with the Supreme Court not deciding the merits of those cases and remanding the Benisek case on procedural grounds.
Still, that left open the possibility the merits of the legal issue would come up again this year, and a decisive Majority opinion, particularly with the North Carolina Rucho case waiting in the wings. Unfortunately, for those who have studied the corrupting consequences on democracy and good government created by severe partisan redistricting, a year didn’t help. Instead, the clarity the Supreme Court decided, came in the form of a 5-4 opinion consolidating the Redistricting challenge of Benisek with that of North Carolina’s Rucho decision, concluding partisan gerrymandering will not be addressed by the Federal Courts as a “political question.”
As MdAppBlog contributor Alan Sternstein explained in a piece last week analyzing Rucho, excessive partisan gerrymandering, would appear to be quite justiciable, and logically makes sense, consistent with prior Supreme Court cases. Justice Elena Kagan’s Dissent, in favor of justiciability, discussed the little doubt, without Court intervention, the potential permanent possibility, of the lack of competitive Congressional elections, and an unnatural number of elected partisan Democrats and Republicans, as opposed to moderates, centrists, and independents. Chief Justice John Roberts’ Majority Opinion, perhaps ironically as a more optimistic perspective, in determining that the issue was non-justiciable in the federal courts, seemed to support alternatives, through Congressional action, or through the “state by state” approach of non-partisan redistricting Commissions. This piece focuses on the Congressional action alternative, particularly as related to the history of the Populist movement also known as the “Progressive Era” movement from the early 1900s. Part Two, when published will discuss the “state by state” approach alternative in more detail, both historically, and how that can be a guide for today.
A Necessary and Proper Post on the 200th Anniversary of McCulloch v. Maryland and the Upcoming Maryland Bicentennial Symposium
On March 6, 1819, exactly 200 years ago today, Chief Justice John Marshall issued his landmark McCulloch v. Maryland opinion, on behalf of a unanimous Supreme Court. On its face, McCulloch confirmed the federal power to create a national bank free from state taxation. But more enduring than the national bank’s charter (which expired by 1836) is the holding in favor of Congress’s implied powers, under the “Necessary and Proper” clause of the Constitution’s Article I, Section 8. Today, law students and elite legal minds alike continue to study the case and its lasting impact on our government framework and constitutional jurisprudence. Read More…
Baltimore attorney John J. Connolly, a prolific writer, has self-published an invaluable volume, Republican Press at a Democratic Convention: Reports of the 1867 Maryland Constitutional Convention.
Connolly, who annotates the 1867 reports published by the Baltimore American and Commercial Advertiser, begins with this commentary: Read More…
By Michael Wein
With the coming New Year, reflection and reexamination on the past is natural, to understand and fully appreciate the challenges and hopes for the coming year. At least in Maryland, the history of “appeals” has not been the focus of determinate scholarly debate, internally, or in comparison to other jurisdictions. For example, did you know that appellate courts in the Colonial Americas may have preexisted Thanksgiving, and that the first appellate court continues to be the subject of debate?
If this were the game show Jeopardy! and the “Answer” was “[t]his was the first appellate court established in the Western Hemisphere,” many people might instinctively say the United States Supreme Court. However, it is certainly not the Supreme Court, as part of the U.S. Constitution, Congress’ 1789 Judiciary Act, and a first “session” with Justices in 1790. Instead, the correct response choices include not only Massachusetts (including Plymouth and Massachusetts Bay colonies), but also Maryland, Virginia, and Pennsylvania in North America, and the Real Audiencia in Latin America. These are all “colonial” appellate courts tracing to at least the 1600s, well-before the Supreme Court. A brief description of each contender follows.
We mourn the loss of Judge Howard S. Chasanow, a former judge on the Court of Appeals of Maryland, who died on April 2. I had the privilege to hear Judge Chasanow speak in October 2014 at the portrait and chief judge transition ceremony for his wife, Judge Deborah K. Chasanow, a senior judge of the U.S. District Court for the District of Maryland. Judge Chasanow joked about his wife’s aversion to the spotlight, even at an event held in her honor. “It’s hard to give speeches about people who won’t let you talk about them,” he quipped. That night, Judge Chasanow displayed the same charm that many lawyers had come to admire.
From the MSBA website (registration here):
The State and Local Government Law Section will convene at the Court of Appeals to hear from the Hon. Robert N. McDonald, the Hon. Michele D. Hotten, and the Hon. Joseph M. Getty as they share their thoughts about the history of the court and, in particular, government lawyers appearing before the court.
Hors d’oeuvres will be provided.
The price is $25 for members who register before March 24, and $40 thereafter. (The price for non-members is $35/$50 depending on when they register)
- Court of Appeals
- Section Member : $25
Non-Member : $35
- Section Member : $25
- MSBA State and Local Government Law Section
Anyone who has clerked for a judge knows that a special bond develops during that relationship. For a budding attorney, a clerkship provides one of the first opportunities to gain insights into the practice of law. The perspective of a judge can form a strong foundation for a law clerk’s future pursuit of a law practice. I had the good fortune to serve as a law clerk to the Hon. Rosalyn B. Bell when she sat on the Court of Special Appeals of Maryland. With her passing in August, and a memorial service in October, it seemed like a good time to reflect on the impact she had on her clerks, the legal profession, and the practice of law.
A little more than a month after nine applied for Judge Battaglia’s seat on the Court of Appeals, the pool has been whittled to five nominations. Unsurprisingly, the only sitting Court of Special Appeals judge, the Hon. Kathryn Grill Graeff, got a golden ticket, as did the Hon. Donald E. Beachley of the Washington County Circuit Court, a former magistrate judge on the U.S. District Court for the District of Maryland. Two private practitioners are in the mix as well: Thomas Edward Lynch, III, a principal at Miles & Stockbridge, and Andrew David Levy, a partner at Brown Goldstein Levy and co-author of Appellate Practice for the Maryland Lawyer.
This event calls to mind an exchange I had with a then-professor at Goucher College in 1994. When he expressed sarcastic pride that a Marylander, Taney, wrote the Dred Scott decision, I asked, “Wasn’t Taney otherwise considered a great justice?” He shot back: “How was the play, Mrs. Lincoln?” Point taken.
I favor removing the statue, but we should ask serious questions before cutting symbolic ties with Taney. Read More…
Wracked by feelings of powerlessness regarding Baltimore’s recent troubles, I did one thing I know how to do – I wrote a blog post. I’ve seen debates on social media whether to label the events of this past week a “protest” or a “riot.” It’s a false dichotomy. We’ve had both protests and riots. And my adopted home city in fact has a long history of riots and litigation arising out of them. The decisions of the Court of Appeals of Maryland teach much about the history of Baltimore riots. Read More…