Justice Hamlet lives.
For years, those who’d like the Supreme Court to rein in partisan gerrymanders have been teeing up cases with various theories to try to get Justice Anthony Kennedy, the swing Justice, to agree that sometimes the drawing of district lines to favor Republicans or Democrats goes too far. In 2004, Kennedy famously wrote an opinion that both kept the door open for future redistricting challenges but also rejected a variety of legal theories that had been paraded before him like beauty pageant contestants for separating permissible from impermissible consideration of political party in drawing congressional and state legislative district lines. Since then, plaintiffs have tried to get new cases before the court for Kennedy to make up his mind.
On Monday, the Supreme Court ducked the issue again, after years of plaintiffs litigating cases in Wisconsin and Maryland in hopes of prompting a larger ruling. The court sent Gill v. Whitford, the Wisconsin case, back for partisan gerrymandering challenges to be litigated on a district-by-district, rather than statewide, basis. According to the opinion, plaintiffs had no “standing” to assert a statewide injury. The court also said preliminary relief was not proper in Benisek v. Lamone, the Maryland case, sending it back to the lower court to determine whether relief is warranted when the case is fully complete.
Although people will focus on the court’s ducking of the issue, what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.
Roberts wrote a majority opinion for seven Justices, all but Justices Neil Gorsuch and Clarence Thomas, who wrote in their dissent that they would have dismissed the case on standing grounds entirely and not given the plaintiffs another chance in the district court. Roberts decided the case on technical grounds, rejecting fancy mathematical tests for measuring the partisan bias of plans on a statewide basis and saying that plaintiffs need to allege and prove harm within each district.
Roberts’ opinion is deceptively minimalist, as is his style. All the court decided was that these questions need to be assessed on a district-by-district level. The court explicitly said it was saying nothing about whether there were standards to separate permissible from impermissible use of partisan information in drawing district lines. Indeed, it would be perfectly consistent with Roberts’ opinion for the court to say, in a few years when the case comes back: Sorry, you’ve met the standing requirements, but you have no injury. Case closed.
Justice Kagan signed onto that majority opinion but did two things in a separate concurring opinion for herself and the other liberal justices. First, she said it should be relatively easy to meet the standing requirements in a district-by-district claim, regardless of whether one sits in a district that is “packed” (cram lots of people of one party into a single district) or “cracked” (spread voters from one party around). She suggested that if the substantive standard for proving partisan gerrymandering is bad partisan intent, it will be pretty easy to prove injury in these districts.
Second, and more to the point of enticing Justice Hamlet, Justice Kagan glommed onto Justice Kennedy’s favorite theory for what’s wrong with partisan gerrymandering: It is a First Amendment associational injury. In Justice Kennedy’s thinking, partisan gerrymandering might be unconstitutional if people are suffering in their political representation solely because they are members of one party or another. Justice Kagan not only fleshed out and endorsed that theory (the beauty pageant again). She also tried to prebut any standing objections, suggesting that state political parties would be in an excellent legal position to assert a First Amendment injury across an entire state when the state has engaged in egregious redistricting.
It’s a nice theory, but it only works with Justice Kennedy coming along. And Kennedy did not come along for the ride Monday with Justice Kagan. He didn’t reject it either, leaving him where he’s been since 2004, in the middle, watching the action around him.
When the court took the Benisek case from Maryland, I was puzzled. It was a preliminary case, where the issues were not fully baked, and the court could have simply held the case for resolution of the Wisconsin case. But the court took this one, perhaps so that it could have one case involving a Democratic gerrymander and one involving a Republican gerrymander at the same time. After oral argument in Benisek, the writing was on the wall, and I wrote that I thought the court would duck the merits in both cases. Justice Kennedy seemed no closer to a resolution of the issue. And now the court has put the question off again.
Justice Kennedy will get another chance to weigh in very soon if he desires, in a case tailor-made for his First Amendment theory. After North Carolina’s congressional redistricting was declared a racial gerrymander, it came up with a new plan—in a 50-50 state, it made 10 of the state’s congressional districts Republican and three Democratic. That decision has been challenged as a partisan gerrymander, and a petition in that case awaits action by the court.
North Carolina was explicit it was making a partisan choice, to blunt the claim that it was making a racial choice. It looks like a Kennedy-like First Amendment injury. North Carolina state Rep. David Lewis said he “propose[d] that [the committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.”
The court will likely remand the North Carolina case to reconsider in light of Monday’s rulings, because it has a similar standing problem to the Gill case. But the lower court will likely act quickly after remand, and the case likely will be back before the Supreme Court early next term.
At that point, Justice Hamlet, should he decide to actually make a decision, could take that case and settle this whole thing. But don’t hold your breath.