With Justice Kennedy Seriously Considering Being the 5th Vote to Rein in Partisan Gerrymandering, The Chief Justice Worries About the Political Thicket

Before oral argument I explained that the vote in Gill v. Whitford is likely to come down to Justice Kennedy, with the Court’s four liberal Justices voting to rein in partisan gerrymandering and the four conservatives voting against it. From today’s oral argument transcript, this dynamic appears to be true (apart from Justice Thomas, who did not speak, but who joined Justice Scalia’s plurality opinion in Vieth in 2004 arguing that partisan gerrymandering claims are non-justiciable). Today, Justices Breyer Ginsburg, Kagan, Sotomayor left no doubt they think courts should be policing in this area, and the Chief Justice, Justice Alito, and Justice Gorsuch thought they should not (either because of a lack of standing, or a lack of manageable standards, or because it would impinge on the legitimacy of the Court—more on that below).

Justice Kennedy asked questions only to those defending Wisconsin’s gerrymander, and the questions suggested he believed, as he suggested in Vieth, that Wisconsin’s redistricting plan violated the First Amendment associational rights of Democrats. If he was concerned about finding a “judicially manageable” test to separate permissible from impermissible consideration of party (as he said he was in Vieth), he gave no inkling of that concern in questions today.  While he is no sure bet to vote this way at the end—it is hard to read tea leaves from oral argument and have confidence of how he will vote—the questions on standing seemed to suggest the conservatives were looking for a way to get Kennedy’s vote other than on the merits.

If Kennedy does vote with the liberals, it could easily follow the path set out by Paul Smith, who did an excellent job arguing for the plaintiffs (all the attorneys did an excellent job in this case and the Justices were clearly prepared): intent, effect (measured by partisan asymmetry/bias) and justification, with the threshold being that a plan was enacted by a one-party legislature over the objections of the other party. I don’t expect to see the efficiency gap as the holy grail, especially because it is likely to come under sustained attack by Justice Alito, who has never been a fan of courts getting involved even in the one person, one vote cases.

Perhaps most interesting to me about the argument aside from Justice Kennedy’s lean was the Chief Justice’s professed concern that having courts deciding these partisan gerrymandering cases would inject the courts too much in the political thicket and harm the courts’ legitimacy. From the transcript:

CHIEF JUSTICE ROBERTS: Mr. Smith, I’m going to follow an example of one of my
colleagues and lay out for you as concisely as I can what — what is the main problem for me and give you an opportunity to address it.
I would think if these — if the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country. Politics is a very important driving force and those claims will be raised.
And every one of them will come here for a decision on the merits. These cases are not within our discretionary jurisdiction. They’re the mandatory jurisdiction. We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board.And if you’re the intelligent man on the street and the Court issues a decision, and  let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state.And that is going to cause very
serious harm to the status and integrity of the decisions of this Court in the eyes of the country.

MR. SMITH: Your Honor –

CHIEF JUSTICE ROBERTS: It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn’t sound like language in the Constitution.

I find this line of argument singularly unpersuasive for two reasons.

First, the plaintiffs did not suggest a mechanical test for a 7 percent efficiency gap to decided these cases, and if they did, that would likely make it less politicized rather than more. A rule that says all districts must have exactly equal population is much less vulnerable to partisan manipulation by judges (or appear to be) than a multifactor test.  And there are lots of constitutional tests that go well beyond the language of the Constitution, even tests proposed by originalists.

Second, and more importantly, the Court is already viewed as a political court, and as I’ve argued (and argue more in my upcoming book on Justice Scalia) it is likely to be viewed as a partisan court going forward much more, now that all the liberals on the Court were appointed by Democratic presidents and all he conservatives by Republican presidents. This case is not going to do it. It is already done. The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court.

Indeed, if Justice Kennedy (a Republican appointee after all) votes with the liberals to rein in partisan gerrrymandering, perhaps that would improve the views of the Court by seeing a cross-party coalition reining in something seen as a major problem by both Democrats and Republicans.

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