Back in November, when President Donald Trump referred to a judge who had ruled against his administration as “an Obama judge,” Chief Justice John Roberts issued a rare rebuke in a public statement. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts intoned. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” The remark echoed Roberts’ insistence during his 2005 confirmation hearings that judges are like umpires who merely call balls and strikes.
But the partisan gerrymandering cases the Supreme Court will hear on Tuesday and the case about a controversial citizenship question on the 2020 U.S. census that the court will hear next month will once again put Roberts’ stated principle to the test. This time, following the departure of swing Justice Anthony Kennedy, Roberts could well be the only one in a position to stop a pattern in which all the Republican-appointed judges side with perceived Republican interests and all the Democratic-appointed judges side with perceived Democratic interests. The question in these cases will be which of the two enigmatic versions of Roberts described in Joan Biskupic’s magnificent new book, The Chief, will show up: the solid conservative who wrote the opinion to kill a key provision of the Voting Rights Act and voted with four other conservatives to allow corporate money into candidate elections, or the institutionalist chief justice who is desperate to show that there remains a distinction between law and politics. Given the blockbuster cases expected in the next Supreme Court term beginning in October, there’s going to be real pressure for the institutionalist John Roberts to be dominant in this term’s political cases.
On their face, the two partisan gerrymandering cases the court is hearing do not look like they should break along party lines. In one case, Rucho v. Common Cause, good government groups Common Cause and the League of Women Voters are going after North Carolina Republicans for explicitly drawing congressional district lines to help Republicans capture 10 of 13 seats. In the other case, Benisek v. Lamone, good government groups such as the Brennan Center are siding with Republican voters who have challenged Maryland Democrats’ decision to gerrymander a Republican district to give Democrats a 6–1 congressional advantage in the state. Political scientists have weighed in on both cases to say that technological advances in data technology have allowed for more sophisticated gerrymanders, giving states in the upcoming 2020 elections the ability to draw district lines that will be so effective they can withstand even wave elections that should sweep entrenched incumbents out.
And yet redistricting, like so many other election reform issues, has itself become another partisan issue, with Democrats much more likely to support reform and Republicans more likely to want to leave the question to the political branches. Former Obama Attorney General Eric Holder has raised considerable sums for a Democratic effort to fight Republican redistricting efforts, and former Wisconsin Gov. Scott Walker has agreed to head a Republican group in response to Holder. Republicans must be betting that they will have full control over more state governments after the 2020 census, when law mandates that all lines must be redrawn. (They currently control 30 state legislatures, thanks in major part to methodical 2010 gerrymanders.)
So too are political lines apparent in the census case. The U.S. government is defending the inclusion of a question about citizenship for the first time since the 1950 census as needed to provide accurate demographic information to the Department of Justice to help it protect Latinos in Voting Rights Act lawsuits. But two courts have already found that Commerce Secretary Wilbur Ross insisted on including the citizenship question for undisclosed reasons, and that the DOJ voting rights claim was a mere pretext. Republicans have again lined up in favor of including the question, which Democrats oppose as likely to inhibit a complete and accurate count of all persons in the United States, leading to lower representation in Democratic-leaning areas and fewer federal resources based on population.
As a matter of jurisprudence, the partisan gerrymandering cases are much more difficult than the census case. For decades, the Supreme Court justices have split between conservatives who believe these cases present political questions that are beyond the ability of courts to manage and liberals who think that there are any number of ways to separate out the most egregious gerrymanders from more normal balancing of interests in redistricting cases. Last term, the court punted once again on the issue in the Gill v. Whitford case from Wisconsin, with swing Justice Anthony Kennedy, who had invited briefing on this question since 2004, retiring days after the punt.
We have a good sense of where Roberts stands on these issues. He expressed skepticism at the Gill oral argument about court intervention, worrying that “the intelligent man on the street” is going to believe that when the court decides individual cases, it is siding with either the “Democrats” or the “Republicans,” and not using some scientific measure of partisan bias that he dismissed as “sociological gobbledygook.” And while we don’t know where Justice Brett Kavanaugh will be on these issues because this is the first time he will consider them as a judge, his general jurisprudential disposition puts him firmly in a conservative camp that has long resisted judicial policing of partisan district lines.
The census case is jurisprudentially easier. The Commerce Department’s decision to include the citizenship question is a textbook example of arbitrary and capricious action in violation of the Administrative Procedure Act. The only justification that the department has offered for including the question—helping DOJ help Latinos in voting rights cases—has indisputably been found to be a pretext. Whether Ross was actually motivated by partisan considerations is beside the point. And yet conservative Justices Neil Gorsuch and Clarence Thomas were so put off by this lawsuit that they were willing to stop the trial in the case even before judgment. The court’s other conservatives too might be swayed by the strong political valence of the case.
This is where Roberts’ role as an institutionalist might come in. According to Biskupic’s reporting, Roberts changed his initial vote in the first Obamacare case to save the law from being struck down, crafting a compromise with two liberal Justices, Stephen Breyer and Elena Kagan, to block a Medicaid requirement in return for upholding the law. As Biskupic explained:
Viewed only through a judicial lens, [Roberts’] moves were not consistent, and his legal arguments were not entirely coherent. But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis in health care, even as they engendered, in the years since, anger, confusion and distrust.
There are only so many times liberals can expect Roberts to make this move again. Next term, a presidential election term, promises blockbuster cases on issues from abortion to gun rights to immigration. On the one hand, the conservative Roberts will get to see more of his preferences become part of American law. But the price that may be paid will be Democrats increasingly looking at a Republican Supreme Court doing the party’s bidding.
A Roberts vote to strike down partisan gerrymandering and to block a citizenship census question might be some ammunition against such claims in the term—and the years—to come. He can show in these cases that he is above politics, and then call the “balls and strikes” in the cases to come next term exactly as he’d like them to be.
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