For more than the last decade, since the Supreme Court decided Vieth v. Jubelirer, plaintiffs have been angling to get another case raising the question before the Supreme Court. In Vieth, Justice Kennedy sided with the dissenters in holding that partisan gerrymandering cases are justiciable (meaning courts can hear the challenge), but he also sided with Justice Scalia’s plurality opinion rejecting all of the proposed standards for separating permissible from impermissible considerations of party in redistricting as “judicially unmanageable.”
Now there is a race of sorts to get one or more partisan gerrymandering cases before the Court while Justice Kennedy remains on it. There are notable cases from Wisconsin, North Carolina, and Maryland that the Court could hear within the next term or so. The hope is that there is a new standard that would satisfy Justice Kennedy.
So where would Judge Gorsuch fall here? We don’t have any direct writing I know of as to his views on partisan gerrymandering. But there is an opinion that Judge Gorsuch wrote dissenting from the denial of rehearing en banc in a case raising the question whether the Guarantee Clause provides a judicially manageable standard to address a complaint about a tax measure. Judge Gorsuch wrote a paragraph comparing the plaintiffs’ claims with the claims in Vieth on the question of judicially manageable standards:
The situation we confront in this case is more than a little reminiscent of the one the Supreme Court faced in Vieth, where the plaintiffs sought to challenge a political gerrymander as unconstitutional. There, 18 years of experimenting by various courts failed to yield any sure standards for litigating those sorts of cases. Here, we encounter an arguably longer history of failed efforts to develop standards for litigating Guarantee Clause cases involving individual citizen initiatives—one extending into the nineteenth century. There, the plaintiffs sought to identify and defend as workable their own set of legal standards at the motion to dismiss stage, but the Court found those efforts unavailing and affirmed the dismissal of the complaint. Here, the plaintiffs haven’t even attempted to identify workable legal standards for adjudicating their case despite many opportunities over many years. If the law’s promise of treating like cases alike is to mean something, this case should be put to bed now as Vieth’s was then, rather than being destined to drag on forlornly to the same inevitable end. I respectfully dissent.
Make of it what you wish.