Ned Foley: Blame the Constitution, Not the Court (Rucho Symposium)

The following is a guest post from Ned Foley, part of the symposium on Partisan Gerrymandering after Rucho:

Partisan gerrymandering should be unconstitutional, but the Supreme Court has ruled otherwise.

Anger at Chief Justice Roberts for this 5-4 decision is understandable but misplaced. The problem is not Roberts.  It’s the document he’s sworn to uphold.

            Don’t get me wrong: I would have joined Justice Kagan’s opinion. Hers is the better interpretation of the Constitution.

            But, to be honest, it’s hardly open-and-shut. A compelling case can be made that Roberts, not Kagan, is more faithful to the Constitution.

            So, what is his argument? First, nothing in the Constitution explicitly prohibits partisan gerrymandering.  Second, in the absence of an explicit prohibition, it would be improper to enforce an implicit prohibition against the practice—because judicial enforcement invariably would rest upon a subjectively arbitrary determination of how much partisanship in redistricting would be too much.

            As to his first point, it’s undeniable. It’s too bad that the Constitution’s text does not explicitly prohibit gerrymandering.  If it did, Roberts would enforce the prohibition.  Maybe someday America will be able to amend the Constitution to correct this deficiency—just as it has amended the Constitution to grant equal voting rights to African-Americans and women, and to provide for popular election of U.S. Senators (rather than their appointment by state legislatures, as provided originally).

            The second part of his argument is more debatable.  Justice Kagan was willing to infer from the Constitution’s general commitment to the political equality of citizens, and to their rights of political participation, that excessive partisanship in redistricting contravenes fundamental constitutional norms. But to be clear: Kagan agreed with Roberts that not all partisan distortion of district lines was unconstitutional, only when excessively so. And she wasn’t prepared to say exactly where she’d draw the line between excessive and acceptable partisanship, only that (whatever the ultimate dividing line) the legislatures here had gone too far.

            It was on this point that Roberts was unwilling to take the same leap that Kagan was.  He couldn’t bring himself to say “this much is too much” unless he had an objectively principled basis, rooted in constitutional law, for demarcating the boundary between permissible and impermissible partisanship in redistricting. It is hardly an unreasonable position for a Justice to take.

            A couple of days before the decision was announced, another election law scholar asked me where I would draw the line.  I responded: “three standard deviations from the mean,” invoking the same sort of statistical evidence upon which Justice Kagan relied, although willing to draw the constitutional boundary more precisely than she did. The comeback from my colleague was inevitable: why not two standard deviations from the mean, or some other statistical test of demarcation? And how could any such statistical benchmark be derived from constitutional law in a principled way? It was obvious questions like these (unanswered by Kagan’s dissent, one must acknowledge) that caused Roberts to declare that the exercise could not be undertaken.

            Ultimately, it is a different jurisprudential vision of the Court’s relationship to the Constitution that would cause a Justice to comfortable, or not, in making the kind of interpretative leap that Kagan was willing to undertake, but not Roberts. I think a certain arbitrariness in the choice of statistical benchmark—between two or three standard deviations, or whatever—can be tolerated in the interest of vindicating fundamental values that underlie the Constitution even when not expressed with sufficient precision in the constitutional text itself.  Kagan herself expressed the point: while all of the Constitution requires judicial protection under Marbury, the Constitution’s most basic commitment to self-rule by citizens deserves an extra measure of judicial solicitude.

            But that jurisprudential philosophy is not part of the document itself. It is associated most famously with John Hart Ely and, as Ely himself explained, has its roots in the Warren Court’s protection of voting rights. While I would proudly associate myself with an “Elysian” approach to constitutional interpretation, I must recognize the plausibility of an opposing perspective—one that rejects the primacy of democracy as an organizing constitutional principle and, instead, asserts that the Court must interpret the Constitution less ambitiously, hewing narrowly to its text and more evident meanings. It is because Chief Justice Roberts is not an apostle of Ely, but instead embraces this more modest and opposing approach, that he does not leap at the opportunity to invalidate partisan gerrymandering as unconstitutional.

            One can regret that Roberts is not Elysian. But the Constitution itself does not compel an Elysian interpretation. It is not sufficiently clear on this crucial point, and for this the Constitution itself is to blame. 

            Which leads to the most fundamental lesson of the Court’s decision in the gerrymandering case.  For over fifty years, since the “reapportionment revolution” of the Warren Court, the effort to improve democracy has focused largely on judicial victories. But another fifty years before that, during the Progressive Era, democratic reform—like women’s suffrage and popular election of U.S. Senators—was secured without judicial involvement.  It is time to turn back to the method of the Progressive Era. If the Constitution as written is insufficiently democratic, then the way to fix it is to harness popular anger against the Constitution itself.

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