Justice Alito’s dissent in Bethune-Hill II

Justice Alito has always had a particularly keen interest in redistricting, which I assume traces to his father’s involvement with the redistricting process during his work with the New Jersey legislature.  Thus, I am not surprised he wrote the dissent in today’s case.  Leaving aside the standing issue itself, his dissent includes many noteworthy statements about how much redistricting affects what legislatures do and the laws they produce. 

These comments, in my view, are in tension with one argument Justice Scalia made in his plurality opinion in Vieth, in which he argues it is “impossible to assess the effects of partisan gerrymandering” because who knows how voters will vote from election to election.  I agree with Justice Alito that it would be “quite astounding” we have such “pitched battles over redistricting” if redistricting had no effect on what kinds of laws legislatures enact.

To be sure, there are other arguments made as to why courts should find redistricting non-justiciable. But Justice Alito is well-aware of how consequential redistricting can be, as this sampling of his comments from today attests:

“A legislative districting plan powerfully affects a legislative body’s output of work.”

“…it matters a lot how voters with shared interests and views are concentrated or split up. The cumulative effects of all the decisions that go into a districting plan have an important impact on the overall work of the body. All of this should really go without saying.”

“Districting matters because it has institutional and legislative consequences.  … To suggest otherwise, to argue that substituting one plan for another has no effect on the work or output of the legislative body whose districts are changed, would really be quite astounding.  If the selection of a districting plan did not alter what the legislative body does, why would there be such pitched battles over redistricting efforts?”

(Full disclosure: I represent Common Cause in the NC partisan gerrymandering case currently pending before the Court).

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