OFF THE FLOOR:
A Capitolwire Column
By Peter L. DeCoursey
Bureau Chief
Capitolwire
HARRISBURG (Jan. 25) – Justice Ron Castille led a Supreme Court majority to one of the most stunning decisions in state political-legal history today.
And he crossed party lines to do it, voting with three Democrats against his three fellow Republican Supreme Court justices, to send the Legislative Reapportionment Commission’s state House and Senate redistricting back to the drawing board.
Castille, whose devotion to the GOP was so great that former Philadelphia party boss Billy Meehan ran him for mayor way back, was considered a safe GOP vote for the plan by the folks who helped him win election and retention.
The theory went, as it has gone for decades around here, that justices vote their conscience on most issues, but their party on political issues. The Democrats did it to back up their governor and legislative majorities in 1991, and the Republicans did it in 1981 and 2001. Although usually, even the other party’s judges went along.
So for Castille to go against not only two Republican justices, but also the only other two justices to vote with him to affirm the equally one-sided partisan pro-GOP 2001 plan, was a shocker, and a big change.
Castille’s GOP colleagues wanted to just write a “prospective guidance” opinion so the 2021 redistricting would not be quite so brazen in splitting communities for partisan political advantage as this one was.
But not the chief justice. Castille joined three justices with less than a decade on the bench in writing what is likely to be the new rules of state redistricting.
In the 40-odd years since the current state constitution took effect, the Supreme Court had set up a group of precedents which basically said the legislative leaders and fifth vote, usually a court appointee, could do whatever they wanted. Those rulings allowed politics to split towns that could have been kept together, pie-slice counties and divide communities that considered themselves a unified region.
The redistricting process became the only procedure in state government without much in the way of procedural reform since 1971.
How big a departure is this? There are two Democratic legislative leaders on the commission and two Republicans. The deciding vote was cast by former Superior Court Justice Stephen McEwen, who was appointed to that post by the court.
Castille essentially decided that McEwen, like him, a former partisan southeastern county GOP district attorney, who went on to be a distinguished judge, had disappointed in assenting to this plan.
Castille’s decision was backed by a pair of McEwen fans, former Superior Court judges Debra Todd and Seamus McCaffery, who also thought McEwen would not produce anything like the map his vote created.
How surprising was this? When I asked several Democratic and Republican insiders how many of the Democratic justices would vote against the plan, only one, Senate Minority Leader Jay Costa, D-Allegheny, thought even one Supreme Court justice would vote against it, even after Castille and several justices peppered the Legislative Reapportionment Commission’s attorneys with questions about it.
How inevitable was the commission’s plan seen as? So much so that House Minority Leader Frank Dermody, D-Allegheny, voted for a plan that combined the seats of two of his incumbents and moved it across the state, because it was the best deal he thought he could get.
Castille may end up doing more for House Democrats in this map than Dermody could have, even though Dermody voted for it.
Nobody but Costa thought even one Supreme Court justice would vote against it, and most attributed his fight to the fact that his caucus took an even worse beating from the commission plan than Dermody’s had. But Costa remained oddly confident that this plan demanded too much slavish devotion to bad precedent from this court.
While Castille’s order of a redistricting do-over was issued today to the four legislative leaders and the Castille-appointed chairman, McEwen, no one know what it will make them to do to fix it until the opinion telling them what to fix is released, perhaps on Thursday or Friday.
But the dissent by Justice Thomas Saylor, and joined by his two GOP colleagues, Mike Eakin and Joan Orie Melvin, suggests that the commission’s argument that they had to split too many municipalities and counties to make the districts closer to the same size, didn’t fly.
The state constitution says townships and counties should only be split if “absolutely necessary” and it was clear that the commission plan did not take those words literally.
But as Senate Majority Leader Dominic Pileggi, R-Delaware, said, this plan split less municipalities and counties than the 2001 plan did.
And Castille voted to affirm that plan, about a decade ago.
A stunned-looking Pileggi said: “It’s noteworthy that the chairman of the commission,” McEwen, appointed by the court, “who voted for the plan is a former president judge of the Pennsylvania Superior Court certainly familiar with the court precedent of Pennsylvania.” and the attorney for the commission,” Joseph Del Sole, “is a former judge on the Superior Court, also very familiar with the law in Pennsylvania.
“There’s no doubt in any attorneys’ mind that advised the commission that the plan was at full compliance with existing law. I don’t know what the Supreme Court order is, and whether they are taking a new approach…”
Asked why he then thought that Castille, who apparently upheld the precedents in 2001 that McEwen and Del Sole thought were still in place in 2012, ruled against this plan, Pileggi said: “I’m frankly surprised that any judge voted to remand this plan. I think as I said before it is a very solid plan that meets all state, federal, constitutional and statutory guidelines.
“And I’m very anxious to read the opinion and see the reason for the remand.
Sen. Jay Costa, D-Allegheny, noted that back on Monday, “It was very clear from the questioning of Chief Justice Castille that he had concerns” about the commission plan. “The majority of the members of the court believed the plan did not pass constitutional muster.”
Pileggi insisted that this map was far better than the one Castille voted for in 2001 on every front on which the plan was attacked.
But Castille decided to take a stand.
Two friends of mine who work in the courts, and many law professor friends say my view that justices behave like politicians on a certain small sub-strata of cases is wrong. They say I am looking for behavior that isn’t there.
Well, on this case, the three Democrats voted against a plan that hurt their legislative party, and three Republicans voted for it.
But I have to admit, Justice Castille certainly flouts that theory, doesn’t he?
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