Although the court did not explain its willingness to schedule a hearing at the same time that it voted to block the lower court ruling in the meantime, its actions on Monday were not favorable to the challengers of the Wisconsin plan.
One of the factors that the court considers in putting a lower court ruling on hold is whether there is a fairly good chance that the lower court will be overturned, when a decision is made by the Justices. It takes five votes to issue such a postponement. On Monday, it was clear that these Justices favored that action, although the order did not name them explicitly; Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Anthony M. Kennedy, and Clarence Thomas….
In postponing until its hearing the issue of whether the court actually has jurisdiction to make a final decision for or against the partisan claim, the Justices did not say what that procedural hurdle might be.
Among the possibilities is that the question of whether a partisan gerrymander lawsuit can efen be filed is a question of whether the issue is “justiciable” – that is, capable of being decided by a court. A non-justiciable dispute is beyond court authority.
There also are questions, in this particular case, on whether a court may hear a challenge to a redistricting plan based upon a claim of partisan gerrymandering if the challenge is statewide, and not district-by-district, and on whether the state’s Republican leaders had been denied any chance to defend their plan under the formula that the lower court had only disclosed in announcing its final decision. Whether those are questions of “jurisdiction” is unclear.