Nick Stephanopoulos: The Denouement of Kennedy’s Retirement (Rucho Symposium)

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

Both gerrymandering cases the Court decided this term—Rucho v. Common Cause out of North Carolina, and Lamone v. Benisek out of Maryland—began while Justice Kennedy still sat on the Court. So did last year’s big gerrymandering case, Gill v. Whitford out of Wisconsin. So too did the Michigan and Ohio cases that are in the process of being appealed to the Court.

Because all of these suits started while Kennedy was the crucial swing vote, all of their arguments were tailored to him. Consider the reliance on measures of partisan asymmetry in all of the cases except Lamone. The reason for this reliance was Kennedy’s statement in LULAC v. Perry that he did not “discount” these metrics’ “utility in redistricting planning and litigation.” Or take the theory that gerrymandering violates the First Amendment by burdening voters’ associational rights and subjecting them to viewpoint discrimination. All five recent cases made this claim. And they did so because of Kennedy’s concurrence in Vieth v. Jubelirer, where he remarked that “the First Amendment may be the more relevant constitutional provision in future cases.” Even the computer-generated maps that featured in all of the cases except Lamone had a Kennedy connection. He wrote in Vieth that plans should be struck down if their “political classifications” are “unrelated to any legitimate legislative objective.” Large numbers of simulated maps are the best way to tell if an enacted plan does or doesn’t serve a valid end.

Unfortunately for these litigants, Kennedy is no longer the Court’s median justice. Chief Justice Roberts is now the Court’s fulcrum. And he never expressed any sympathy for Kennedy’s views on gerrymandering (let alone joined any of his opinions). So it was unsurprising that Roberts was unmoved by the plaintiffs’ arguments in Rucho, rejecting them in cursory terms. These arguments had never been targeted at Roberts, nor had he ever shown any receptivity to them.

Still, it’s striking just how cursory Roberts’s dismissal was. He didn’t mention any measures of partisan asymmetry. Instead, he simply asserted that all of them—indeed, all partisan gerrymandering claims—“invariably sound in a desire for proportional representation.” The First Amendment theory got similarly short shrift. According to Roberts, district maps impose “no restrictions on speech, association, or any other First Amendment activities.” Therefore “the First Amendment test” is “not a serious standard.” And as for the computer-generated maps, they’re supposedly flawed because they “use criteria that will vary from State to State and year to year.” Roberts also couldn’t imagine deciding what “deviation from a median map” would render a plan objectionable.

If Roberts was uninterested in all of the arguments developed for Kennedy, then what was he interested in? As it turns out, almost exactly the same things as the author of the plurality opinion in Vieth, Justice Scalia. In fact, reading Rucho is like traveling back in time to 2004. Virtually every point Roberts made was anticipated by Scalia. It’s as if nothing happened—legally, theoretically, empirically—between then and now.

Consider Roberts’s position that all partisan gerrymandering claims invariably seek proportional representation. Scalia made the same assertion in Vieth: that all such claims “rest upon the principle that groups . . . have a right to proportional representation.” Or take Roberts’s view that if some partisanship in districting is allowed, then there’s no way to answer the question, “At what point does permissible partisanship become unconstitutional?” Scalia also identified this allegedly “unanswerable question”: “How much political motivation and effect is too much?”

Roberts further maintained that “it is not even clear what fairness looks like in this context.” It could be “a greater number of competitive districts,” or “yielding to the gravitational pull of proportionality,” or “adherence to ‘traditional’ districting criteria.” Likewise, Scalia wrote that “fairness” is a “flabby goal” that is “compatible with noncontiguous districts,” “with districts that straddle political subdivisions,” and “with a party’s not winning the number of seats that mirrors the proportion of its vote.” And Roberts claimed that “many voters split their tickets” and that “voter preferences and behavior . . . change over time.” So judges can’t be expected “to predict how a particular districting map will perform in future elections.” Once again, Scalia was there first: “Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line.” “Requiring judges” to analyze plans’ effects thus “casts them forth upon a sea of imponderables.”

The parallels between Rucho and Vieth, then, are overwhelming. They also mean that the post-Whitford campaign to win Roberts’s vote was doomed from the beginning. Kennedy’s vote may have been gettable with the right arguments and evidence. But Roberts’s never was. On this issue, he was no swing justice, but rather a facsimile of Scalia, all the way down to his choice of words. So Rucho wasn’t really lost on June 27, 2019. Defeat actually became certain one year earlier, on June 27, 2018—the day Kennedy announced his retirement from the Court.


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