Ned Foley on Why Oral Argument Might Matter in WI Partisan Gerrymandering Case, and Some Questions

Ned:

It is often said that oral arguments rarely make a difference to the outcome of a Supreme Court case, that the Justices’ minds are essentially made up before oral argument begins.

But Gill v. Whitford, the blockbuster partisan gerrymandering case from Wisconsin, looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.

There are two reasons for this.   First, Justice Kennedy—whose vote is widely understood as crucial to determining whether or not the Constitution is interpreted as containing a judicially enforceable constraint on the deliberately partisan manipulation of legislative districts—has made clear from his own previous opinions on the topic that he is genuinely torn between two opposing view: on the one hand, the need to identify some such constraint; and on the other, the inability to do so thus far. Even if Justice Kennedy goes into Tuesday’s oral argument tentatively leaning towards one side or the other (having read all the briefs filed in the case), there is a significant possibility that what is said during the argument could push him back in the opposite direction.   There is little doubt that even now, so far into the litigation of this issue, Justice Kennedy is still very much open to persuasion on this issue. It is, of course, the task of the Supreme Court advocate to be persuasive when and where the opportunity exists, and there may be moments in Tuesday’s argument—in responding to one of his questions, or even one of another Justice’s—when the advocate can make a point that either dislodges a previous expectation based on the reading of the briefs or instead solidifies a tentative understanding.

The second reason is that, even after all the briefs (or maybe because of all of them), there is still much uncertain and unsettled about the litigation of monumental lawsuit and thus important points that the oral argument can clarify or pin down in ways that might be helpful to one side or the other. For example, how important is the so-called “standing” issue, upon which the state of Wisconsin places much emphasis in its briefs, but which received relatively less attention in the district court (and virtually no discussion in the media’s consideration of the case)? In other words, could this particular lawsuit fail not because of an invalid theory on the merits of the claim, but because the plaintiffs did not identify specific districts that were harmed as a result of the statewide gerrymander (and thus did not attempt to link specific plaintiffs with a district-specific injury, even if the unconstitutionality of the gerrymander had a statewide character)?

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