Is Justice Kavanaugh in Play in the Partisan Gerrymandering Cases? Or is that Too “Big” of a “Lift”?

In my write-up of what’s at stake in the partisan gerrymandering cases over at Slate, I focused on whether Chief Justice Roberts is in play. I dismissed whether Justice Kavanaugh is in play with a single sentence: “And while we don’t know where Justice Brett Kavanaugh will be on these issues because this is the first time he will consider them as a judge, his general jurisprudential disposition puts him firmly in a conservative camp that has long resisted judicial policing of partisan district lines.” That may have been too hasty, and Kavanaugh may well be in play, based upon the transcript in today’s Rucho case and Benisek case involving partisan gerrymandering. I still would not bet on him siding with the liberals to police partisan gerrymandering though.

Let me begin with more than the usual caveats. Oral arguments are not always predictive of votes, Kavanaugh is a new Justice on the Court with a general conservative disposition, and I was not present at the oral argument; I’m going only off the transcripts.

But Kavanaugh seemed to seriously question whether the Equal Protection Clause required intervention, even perhaps some kind of requirement of proportional representation (although that question struck me as kind of an intellectual exercise rather than a serious question). He repeatedly returned to the proportional representation question in the Benisek case, at one point asking the state’s lawyer: “Equal Protection Clause does not suggest to you something where political groups are treated roughly equally?”

The most telling exchange was this with plaintiffs’ lawyer Allison Riggs:

JUSTICE KAVANAUGH: I took — I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy — and I’m not going to dispute that — and that the Court, even though it might be a problem to get involved in all these cases, should, in essence, recognize the emergency situation from your perspective. But what about, to pick up on something Justice Gorsuch said earlier, that there is a fair amount of activity going on in the states on redistricting and attention in Congress and in state supreme courts? In other words, have we reached the moment, even though it would be a — have we really reached the moment, even though it would be a big lift for this Court to get involved, where the other actors can’t do it?

MS. RIGGS: The North Carolinian plaintiffs in front of you can do nothing to solve this problem. And —

JUSTICE KAVANAUGH: But I’m thinking about more nationally. Your — your — the amicus briefs are certainly referencing a — a problem in many states. And the idea, I think in the briefs, is this Court and this Court alone can step in. And — and there is a fair amount of activity going on in the states, recognizing the same problem that you’re recognizing.

This strikes me as someone seriously grappling with the question. Is the Court’s involvement necessary. Can redistricting commissions and state Supreme Courts (North Carolina’s just gained a lopsided Democratic majority, a point no one seemed to bring up) pick up if federal courts are out of the game?

There’s an irony in relying on commissions of course, at least those established against legislative wishes. The Supreme Court on a 5-4 vote upheld the use of these commissions in congressional elections, but Justice Kennedy the swing vote is gone and this case could in fact be reversed in a few years, as I explained in The Atlantic.

What will Kavanaugh do? It is a more interesting question than I thought before, but I still wouldn’t bet on him being a fifth vote to create a new constitutional claim. And there’s no fully counting out the Chief Justice either.

[This post has been updated.]

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