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My professor forewarned me

During my first week of law school, I had a professor spend the entire week studying one United States Supreme Court case. The case had absolutely nothing to do with our class. She spent the entire week dissecting the case in painstaking detail. She proved facts the court relied on weren’t facts. She showed the court contradicted itself in the case and in prior statements made in other cases. She showed the court made statements that were false. She even proved the court ignored applicable law to reach its result-oriented decision.

At the end of the week, our professor asked us this question, “why did we just spend the entire week studying a case that has nothing to do with our class?” We were first year law students in our first week of law school. After hearing no response, she said, “You think courts issue opinions based on the truth, case law, and sound legal reasoning. The only truth is Supreme Courts can say and do whatever they want irrespective of logic, precedent, or truth. They may not be right, but they get the last say. The sooner you figure that out, the better off you’ll be.”

I was reminded of my professor this last week when the Idaho Supreme Court issued its opinion on reapportionment. In that case, the Court did an about-face ruling that the Reapportionment Commission has broad discretion to approve a new plan for legislative districts.

Our system allows people to submit proposed legislative district plans. Until last week, the Idaho Constitution and statutes required the Reapportionment Commission to adopt a plan that split the fewest number of counties, preferred keeping legislative districts wholly contained in a single county, and kept splits outside a county to a minimum. These legal requirements wisely tied the hands of a Reapportionment Commission to minimize mischief and gerrymandering.

The system wisely involved the grass roots in creating a new legislative district plan. It harnessed the genius possessed by individuals to submit their plans for consideration by the Reapportionment Commission who was, until last week, subject to established case law interpreting the Idaho Constitution and statutes.

Having the public involved in achieving a legislative district plan allows for the consent of the governed. Having the masses propose legislative district plans serves as a check and balance against raw political power possessed by an unelected Reapportionment Commission, not accountable to the people, but rather, appointed by politicians and political parties.

However, all that went out the window last week when the Idaho Supreme Court did what two prior Idaho Supreme Courts refused to do in the last 17 years. This Court newly interpreted the Idaho Constitution and statutes to give the Reapportionment Commission broad discretion without the established constitutional and statutory siderails the prior Courts had recognized. What’s the point of submitting proposed plans now?

In doing its about-face, the Court expressly “disavowed” two prior Idaho Supreme Court cases. In 30 years as a practicing attorney, I’ve never heard of a court “disavowing” case law. In rare instances, a court “overrules” prior case law. I don’t believe I’ve ever seen a court “disavow” prior case law, especially two cases in one fell swoop. When I think of “disavow,” I’m reminded of Ethan Hunt in the Mission Impossible movies. “Disavowed” for Ethan Hunt means the government, if confronted, would ignore his existence and deny any responsibility for him even though we all know better. I can hear my professor saying, “I forewarned you.”  

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