The Governor has called for the Supreme Court to clarify its ruling reinstating Colleen Mathis to the Board of the IRC. The media have jumped to the conclusion that the ruling is substantive and that court has ruled that Governor Brewer exceeded her authority. Randy Parraz today demanded that Brewer publicly apologize---I hope Jerry Lewis is beginning to understand what kind of monster he created.
But back to the ruling. As soon a the ruling came out, I pointed out that the wording was odd and that the court had said that the "letter" didn't demonstrate substantial neglect of duty etc. My point was that it appeared that the Court's complaint was procedural.
Now that the court has allowed a couple days to pass and provided no additional information, it's clear that I was right.
So here's what the brief statement followed by the silence means: the court believes it has answered the question. That can only mean that the opinion is unanimous and procedural. Think about it. If there had been a dissent, or if the court had rejected Brewer's actions on the merits, then the court could not leave everyone hanging in a lurch.
I believe that the Court is well intentioned and that their ultimate opinion will be well reasoned. I also believe that the court wants to give the Governor the information she needs and I believe that the members of the Court are exceptionally bright. So the ruling was no accident. It means exactly what it says. The letter didn't demonstrate substantial neglect...etc.
This mean that the rulling is actually a victory for Brewer. The media will never admit it, but they botched it. It's the Tet Offensive all over again. The media declares that a success is actually a failure and the party that actually won, never manages to correct the narrative.
The Court has ruled that Governor Brewer did not exceed her authority. They have deferred to her and to the Senators to determine what constitutes substantial neglect of duty or gross misconduct. However, they do not believe that Ms. Mathis received adequate notice on the specific violations and have reinstated her subject to the Governor fixing the procedural shortfalls.
Brewer's authority has been confirmed and she simply needs to write a detailed letter to Mathis in which Brewer lays out the specifics of Mathis's violations. She needs to give Mathis an adequate time to respond and if Brewer still believes that Mathis has substantially neglected her duty, Brewer has the clear authority to once again remove her. End of story.
Post Script: There are two issues that have generated a lot of confusion.
First, What's up with the purple dress?
One Justice--I believe it was Hurwitz--asked Brewer's counsel if the Governor could fire Mathis for wearing a purple dress. This is a classic law school question. Hurwitz is taking the Governor's legal position to an absurd extreme and seeing if the position fails. If Brewer's counsel says, no, then Hurwitz would proceed to less absurd examples until the Governor's counsel conceded that the courts could determine the standard. The governor's counsel didn't fall for it and insisted that the Governor could indeed fire Mathis for wearing a purple dress. The media naturally jumped on this as an example of Brewer being unreasonable.
I would have answered the question differently. The courts have established standards of deference--most famously, the Chevron standard. The court can look to see if an action is arbitrary and capricious without having to establish an actual standard. This allows the Court to set a threshold substantive standard without getting sucked into the trap of defining exactly what the substantive standard will be. So my answer would have been that the court should determine if the Governor had acted arbitrarily, and once it had determined that she had not, then defer to her judgment. If the governor had indeed removed Mathis because of her dress, or her hair style, or by flipping a coin, that would be arbitrary and the court could step in.
But they are Draft Maps...
Mathis supporters in the media have been claiming that these are draft maps and they are subject to change, so the Governor acted prematurely. After all, the draft maps from 10 years ago are dramatically different than the final maps that were adopted by the IRC.
This would be a good argument if the IRC had simply made a mistake. However, Mathis has systematically drawn maps that violate the Constitution. The current maps are not a mistake; they are part of a plan. She denied Republicans their choice of attorney, she admitted violating the open meeting law in order to select a Democratic operative to draw the maps and she took the maps home over the weekend and returned with maps that violate the Constitutional prohibition against gerrymandering. Sure, Mathis and the Democrats could have a change of heart and suddenly decide to follow the constitution by respecting communities of interest and compactness. However, there is no indication that she is willing to do this. Conversely, instead of revising the drafts, she could simply approve then and submit them to the Justice Department and it would be game over. So Brewer waited as long as she could wait.