Mike Parsons has posted this draft on SSRN. Here is the abstract:
For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well for voters.
This Essay challenges an assumption at the core of that concern: the alleged tension between strong intervention and strong institutions. The Constitution’s structural principles were designed not only to prevent arbitrary and tyrannical rule, but to protect individual liberties and provide institutional accountability as well. The Court pays these principles no respect by standing silent when politicians insulate themselves from popular dissent and consolidate their grip on power through the violation of individual constitutional rights. As Justice Kennedy once wrote, “Abdication of responsibility is not part of the constitutional design.” By mistaking inaction for neutrality and avoidance for deference, the Court fails to fulfill its own role in the constitutional scheme and destabilizes the institutions it seeks to protect.
To honor structural principles, respect state legislators, and maintain judicial integrity, this Essay proposes a return to the Court’s traditional tools of principled neutrality: clear rules and coherent doctrine. Clear rules would distinguish general partisan intent (which is the intent to win voters’ political preferences and is legitimate even to an extreme degree) from invidious partisan intent (which is the intent to suppress voters because of their political preferences and is illegitimate regardless of degree). Meanwhile, the effects question in dilution cases should not be “how much suppression is too much suppression,” but rather whether the preferences of a targeted group will or will not usually be defeated.
Coherent doctrine could also be established in the coming term if the Court affirms in Gill v. Whitford and reverses in Harris v. Cooper. Doing so would end the “legal arbitrage” between racial and political redistricting law; harmonize the treatment of racial and political “advantage” arguments across equal-population, dilution, and sorting case law; and bring redistricting law into closer alignment with the Court’s broader equal-protection and First Amendment jurisprudence.
The Court may fear that judicial intervention will be too disruptive or that legislative compliance will be too difficult. These concerns are misplaced, overstated, and underestimate the institutional and structural consequences of the Court’s inaction or exit from the field. Instead, a precise and predictable jurisprudence provides what the Court, the Constitution, and the country all require: strong, accountable institutions, and a forceful defense of individual rights.