In an effort to appear as though it hovers permanently above the partisan fray, the Supreme Court on Thursday delivered perhaps the most staggering win to the Republican Party since Bush v. Gore. In a pair of cases out of North Carolina and Maryland raising the question of whether extreme partisan political gerrymanders can ever violate the Constitution, the five-justice conservative majority finally answered a decades-old question: The federal courts will have no role to play in overseeing whether political lines were drawn for the gain of the majority in violation of the Constitution. As Chief Justice John Roberts put it in his majority opinion:
We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws [as a plurality of the court found in the 2004 case Vieth v. Jubelirer]. Judicial review of partisan gerrymandering does not meet those basic requirements.
With this opinion, the chief justice puts on a masterclass in legal analysis by way of hypothetical question. How much of a partisan gerrymander is too much? How can we know? Which tool could we use? Who knows what lurks in the heart of voters? It reads as a protracted still life in learned helplessness. If, as it turns out, a court genuinely doesn’t want to adjudicate a problem, they can always say it’s too hard.
First, though, he explains that the Framers had no problem with partisan gerrymanders:
The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation. The Whigs in Alabama suffered that fate in 1840: “their party garnered 43 percent of the statewide vote, yet did not receive a single seat.”
(The North Carolina gerrymander in question in this case saw the Democrats essentially split the vote with Republicans for years only to be locked in with three of 13 seats, a far cry from the Whigs’ problem.)
Then, Roberts uses the fact that there are multiple proffered measures of an unconstitutional gerrymander to argue, effectively, “how is a sane jurist to choose?” The high court has been seeking a justiciable legal standard to determine an unconstitutional political gerrymander for decades. Until he retired it was Anthony Kennedy’s white whale. So, Roberts’ opinion is quick to dismiss all of the myriad empirical tests for an impermissible gerrymander that have been produced in the decades since:
[D]eciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.
To be sure, the chief justice knows how this all feels, to the millions of voters whose votes are and will be diluted and discounted by the majorities who draw lines: “Excessive partisanship in districting leads to results that reasonably seem unjust,” he concedes. “But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.
He ends with the noble caution that “No one can accuse this Court of having a crabbed view of the reach of its competence.” And, indeed, nobody does. We have in recent terms witnessed the court’s view of its competence to dismantle the administrative state, to curb union power, to overturn prior precedent, to gut the Voting Rights Act, and to use the First Amendment as an all-purpose civil rights stun-gun. But its competence to do sweeping and consequential change stops, today, at the door of the political gerrymander. In the chief justice’s telling, this is neutral minimalism.
In her dissent, Justice Elena Kagan calls out this learned helplessness in her very first line: “[F]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She adds that the doctrine here clouds the issue that:
The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
Before laying out the specific grotesquerie of the Maryland and North Carolina gerrymanders at issue, Kagan asks her reader to consider: “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?” Then she takes us through exactly how and why the gerrymandered sausage was made.
Voting is the core democratic prerogative that is being further eroded every day in every way, from vote suppression, to disenfranchisement, to phony claims of vote fraud. Minority-elected presidents and senators from minority-sized states seat Supreme Court justices who protect congressional districts that cement minority rule. As Kagan puts it:
The ‘power, James Madison wrote, ‘is in the people over the Government, and not in the Government over the people.’ Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them.
Laying out the corrupting effect of the Maryland and North Carolina line drawing she adds that “[t]he majority disputes none of this.”
The majority just plans to do nothing to solve it.
Kagan then talks chillingly of how modern technology will make the problem catastrophically worse:
And gerrymanders will only get worse (or depending on your perspective, better) as time goes on—as data becomes ever more fine-grained and data analysis techniques continue to improve. What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, “we the people” become sovereign no longer.
After laying out the test she has already proposed for finding a justiciable standard and tweaking the chief justice for his opposition to state commissions, Kagan implies that the majority didn’t even bother to read the lower-court opinions in these cases:
The gerrymanders here—and they are typical of many—violated the constitutional rights of many hundreds of thousands of American citizens. Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. Their votes counted for far less than they should have because of their partisan affiliation. When faced with such constitutional wrongs, courts must intervene: “It is emphatically the province and duty of the judicial department to say what the law is.” That is what the courts below did. Their decisions are worth a read.
She concludes, dispiritingly, that in its search for judicial neutrality and lofty majesty the court has betrayed the American voter:
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.
To be sure both sides gerrymander for their own ends as these cases show, but Republicans have been able to do it better and more in recent years. In 2010, the Republicans took control of most swing states and took power in ways that they have been able to maintain through much of this decade. The decision to sit this one out so that the court can appear magisterial is a decision to help one party, just as eviscerating the Voting Rights Act and blessing voter ID laws have been. This is a monstrously bad decision for Democrats, yes. But it’s also a gut punch to voter confidence that their votes really matter and that voting isn’t a cynical rigged game in which all spoils go to just one side. The court’s decision to preserve its own “integrity” will come at the expense of public confidence that voting even matters, and that is a bitter pill at a moment in which for millions of citizens nothing, other than the hope of voting, seems to matter at all.