Faced with deciding the most important partisan-gerrymandering cases in more than a decade—Gill v. Whitford and Benisek v. Lamone—the U.S. Supreme Court decided on Monday not to decide.
This was not a massive surprise after oral arguments in Benisek, the Maryland gerrymandering case that ostensibly gave SCOTUS an even cleaner vehicle than the already-sparkling-clean case it had before it in Gill. As Rick Hasen predicted after the Benisek arguments, a court looking for a reason to punt now had the capacity to punt. And so, cue the punting.
There will be a tremendous amount of focus in the days to come on Justice Anthony Kennedy, who, like Captain Ahab, has been on a hunt for his white whale of a “justiciable” political gerrymander for close to 15 years now. He will surely, even after this week, know it when he sees it. But the other theme that emerges from another punt in a landmark case is that the Supreme Court is now too frightened of public outcry to decide anything.
Recall that Chief Justice John Roberts fretted openly at oral arguments in Gill last October about the erosion of public confidence in the courts. As he explained it to Paul Smith, arguing for the challengers in the Wisconsin case, he didn’t want the court to get involved in the conflict because “We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the court issues a decision, and let’s say, OK, the Democrats win, and that person will say, ‘Well, why did the Democrats win?’ ” In case that wasn’t entirely clear, he then added the following gloss: “The intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.” (And then he insulted America’s social scientists for good measure.)
Many, many people, including the aggrieved social scientists, found this stated fear rather worrisome. As Jennifer Rubin put it at the time in the Washington Post, “Especially for a ‘conservative’ justice, where does it say in the Constitution that the court should ‘ignore constitutional violations if it makes the court less respected by people who don’t read opinions’? This is an entirely illegitimate concern.” But today I am thinking that one can draw a straight line between the chief justice’s concerns about judicial legitimacy and the attacks on the Supreme Court as a whole after Mitch McConnell saw fit to steal a seat.
After Justice Antonin Scalia’s death in 2016, just as Senate Republicans were inventing a justification for neither holding a hearing nor ever voting on anyone President Obama put forth for the Supreme Court, Sen. Chuck Grassley took to the Senate floor to berate Roberts—who had voted twice to uphold Obama’s Affordable Care Act—for his corrosive and unseemly politicization of the high court. In April 2016, after Merrick Garland had been selected for the vacancy at the court and blanked by Senate Republicans, Grassley lectured the chief justice for politicizing the confirmation process. “What’s troubling is that a large segment of the population views the justices as political,” Grassley said. And whose fault is that? “The justices themselves have gotten political,” he declared. “And because the justices’ decisions are often political and transgress their constitutional role, the process becomes more political.” Roberts, Grassley noted, “is part of this problem.” Grassley pointed out that his own constituents “believe that the number of his votes have reflected political considerations, not legal ones,” adding with a flourish, “so, physician, heal thyself.”
In case his message wasn’t crystal clear, Grassley then added a warning for Roberts to stay out of the public fight over the vacancy: “That’s a political temptation that the chief justice should resist … I can’t think of anything any current justice could do to further damage respect for the court at this moment than to interject themselves into what [Vice President Joe] Biden called the political cauldron of an election-year Supreme Court vacancy.”
You may recall that the chief justice responded to this personal assault on his own integrity and that of the independent judiciary with a series of furious tweets, letters to the editor, and speeches. Nah, he did nothing of the sort. Like a good standard-bearer of an independent judiciary, he steered the court through two terms of relative quiet with narrow opinions and careful punts. Thus, he navigated the most polarizing presidential election in two decades without much denting of the bumpers.
You can call it Mitch McConnell’s court now. Not only did he successfully persuade his country and his party that presidents of the opposing party may not appoint Supreme Court justices, he also continues to crow about how his politicization of that same Supreme Court remains his single most important achievement. And the corresponding (and perfectly rational) response from the court continues to be to shy away from anything that resembles partisanship.
In his opinion in Gill, the chief justice wrote that “this is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved.” That wishy-washiness all but forced Justice Elena Kagan to craft an even more perfect set of facts for the next challengers, in the hopes that maybe the court would someday resolve this. As Garrett Epps notes, the hot-button cases of the term are beginning to dissolve into a version of the refrain from “Melville’s Bartleby the Scrivener, who, when asked to do one or another part of his job, was wont to reply, ‘I would prefer not to.’ ”
What that suggests to me is that it’s precisely because the country is on fire, and we seem to be edging ever closer to a constitutional crisis, that the court will seek to preserve its own institutional legitimacy where it can. That’s totally rational, completely legitimate, and damnably terrifying. The court now joins the chorus of democratic institutions that fear using their own authority, and it’s precisely that fear that puts us in the most danger.
Paul Smith, when questioned by the chief justice at oral arguments in Gill about why the court should rush into a pitched political battle, had a practical response that should not go unheeded. As Smith explained at the time, it would be just as risky for the court to stay “neutral” in the biggest voting case of the term as it would be to pick a side. “It may be that you can protect the court from seeming political,” Smith said, “but the country is going to lose faith in democracy big time because voters are going to be like … voters in Wisconsin (saying) … ‘It really doesn’t matter whether I vote.’ ”
Nothing that happened today was neutral. Voters will be more certain than ever that their votes don’t matter and that the courts won’t get involved. More public confidence in the court nets out to less public confidence in the franchise. And as public confidence in everything that’s supposed to matter at the Supreme Court—truth, decorum, fairness, equality, dignity, integrity—is under attack, it must be tempting for the institution to save its powder for an enormous crisis. I hope the majority of the justices are correct, and that a better vehicle to protect the vote comes along soon, or that state Supreme Courts step in where the high court stands down. But saving your institutional powder as institutions crumble increasingly feels like a risky bet.