Joey Fishkin: Rucho: A Sinkhole Dangerously Close to the House (Rucho symposium)

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

When I teach Rucho, I expect it will pair well with Colegrove v. Green, the long-overruled 1946 case in which a closely divided Court declared that it was perhaps the job of some other branch, but definitely not the job of the federal courts, to remedy the problem of malapportioned districts (i.e. districts with different numbers of people).  The cases reason in similar ways.  Both aim to keep courts out of politics.  Both try, unconvincingly, to console skeptical readers with wildly Pollyannaish assessments of the prospects for legislative solutions that would involve legislative majorities cheerfully voting themselves out of office. (The five-Justice Republican-appointed majority in Rucho takes this a step further into darkly cynical territory by specifically citing the anti-gerrymandering provision of H.R. 1, the bill by House Democrats that will definitely not become law as long as the party that appointed those Justices has any power to block it.)

The solution to Colegrove—and to the entrenched rural stranglehold on political power that it left in place—was for the Court to reverse itself, in Baker v. Carr.  The solution this time will take either a different branch or a very different Supreme Court.  In any case, following the success of Baker v. Carr, the Court has become deeply involved in redistricting, policing racial vote dilution under the Voting Rights Act and racial gerrymandering under the Equal Protection Clause.  That makes Rucho’s return to Colegrovesque reasoning quite bizarre.  It was one thing to make those moves in 1946, when courts did not yet play any significant role in the drawing of political maps.  It’s quite another thing to make them today, in a world where courts are intimately and routinely involved in the drawing of political maps across the nation, something that Rucho won’t change at all.

What Rucho does instead is create a sinkhole adjacent to claims of racial vote dilution and racial gerrymandering—a sinkhole where valid claims can go to die. 

What do I mean by a sinkhole?  It’s very roughly the opposite of the “fence around the law” made famous by the practices of religious Jews.  If you really care about avoiding violations of a prohibition on X, you can build a fence around it by adding a prohibition on Y, where Y is somehow adjacent to X, and especially where it may be possible to confuse the two.  The adjacent prohibition makes it more certain that you won’t somehow end up with a violation of the original one, and also makes it easier to police violations.  But what if, instead of building a fence like that, you were to do the opposite: declare that the adjacent thing is definitely not prohibited?

Partisan gerrymandering and racial gerrymandering are more than just adjacent.  Courts often seem to picture them that way, like next door neighbors who look a bit alike, as they gamely attempt the impossible task of distinguishing them.  But really these two forms of gerrymandering are not so much adjacent as intertwined—under certain conditions even synonymous.  And this intertwining is sometimes itself, in significant part, the product of political strategy.  Former Rep. Tom DeLay (R-TX) convinced his state-legislative colleagues to redraw the maps of Texas in the early 2000s in an effort to specifically target white Democrats, in order to help Republicans become more closely identified over time as the party of white people, and Democrats as the party of racial minorities (a highly successful medium-term strategy for Texas Republicans, albeit one that has a longer-term strategic flaw).  In any case, in many parts of the country our politics are now so racially polarized that party and race are close substitutes.  Partisans can use either for drawing maps, depending on data availability.

Before Rucho, this was a mess; now it’s a farce.  Before Rucho, partisan gerrymandering was a theoretically possible source of liability, even if an unlikely one, so the prudent redistricter tried to keep it subtle.  After Rucho, the incentives run the opposite way: in the many states where Republicans have free rein—that is, where they control all branches including the courts, and are not subject to countervailing ballot initiatives—the majority will now loudly and proudly proclaim that every gerrymander they undertake is a big partisan gerrymander: always party, never race.  The effective federal-courtt safe harbor for partisan gerrymanders creates a too-obvious cover story for racial gerrymanders, not to mention mixed gerrymanders with both racial and partisan components—a sinkhole into which some valid claims of race discrimination in districting will inevitably fall.

The most diabolical part of the majority opinion in Rucho is its acknowledgement that partisan gerrymandering is obviously terrible.  Although Chief Justice Roberts doesn’t state the constitutional harm Justice Kagan articulates in dissent, he says partisan gerrymandering “leads to results that reasonably seem unjust” and is something the majority “does not condone.”  This language reads at first glance like a little olive branch, a nod to reality.  Its actual function is to help claims slide more smoothly down the sinkhole.  If you’re a judge and you think the gerrymander before you stinks to high heaven, the Court is saying, don’t let that distract you.  We know they stink.  Your job instead is to engage, paradoxically, in very searching judicial scrutiny, to determine whether the cause of the stink is or isn’t the one that has been declared impossible for federal courts to assess.

There’s a useful parallel, perhaps, in some damage the court might do next Term, in a completely different context, if the same majority declares that sexual orientation claims cannot be brought under Title VII’s prohibition on discrimination “because of sex.”  In real life, lots of discrimination contains elements of both sex stereotyping and sexual orientation discrimination, which are so deeply intertwined (and sometimes synonymous) that teasing them apart is futile.  But if you hold that orientation discrimination is non-actionable, taking it out of its current limbo status, that creates a sinkhole into which many otherwise valid sex claims, especially stereotyping claims, will fall.  Courts holding that orientation discrimination is not covered by Title VII often include language about how such discrimination is abhorrent in modern society—just not covered by the statute.  This language, as in Rucho,helps ease the reader or judge toward the conclusion that even if a claim seems pretty meritorious, in terms of the words and aims of the statute, it’s “really” an orientation claim and so it should fall into the sinkhole.

When we really care about preventing a violation of an important right, we build a fence around it.  We build, for instance, a broad First Amendment that protects lots of speech that has little social value, because that speech sits adjacent to stuff we really care about protecting.  Imagine an alternative-universe First Amendment where the Court had opened some large sinkhole near protected speech—say by defining a broad category of “vulgarity” and declaring it definitely unprotected.  Much unpopular speech would likely end up reclassified as vulgarity, if it contained any bits that look vulgar if you squint.  Otherwise valid First Amendment claims would fall in the sinkhole.

Justice Stevens long advanced the distinctive view that there’s “only one equal protection clause.”  He has therefore argued that we cannot build completely different doctrinal apparatuses for partisan gerrymandering and racial gerrymandering and any other form of gerrymandering.  They all come from the same Equal Protection Clause, he argues, and we should treat them relatively similarly.  An underappreciated virtue of this view, in stark relief now that the Court has gone the opposite way in Rucho, was that the Stevens approach to equal protection prevents the opening of sinkholes adjacent to valid claims.  This is worth holding onto, as we imagine the constitutional order that Americans might someday build out of the wreckage of these sad times.

I expect that generations of law professors will teach Rucho with Colegrove.  I will also make a bolder prediction: that in my lifetime the two cases will ultimately be grouped together for a different reason, as profound judicial mistakes, since overturned, that permitted unconstitutional forms of political self-entrenchment.  What is not clear yet is the mechanism or timeline of that future overturning.  We are unlikely to see this Court or any similar Court reverse course because unlike in the time of Colegrove, this time the makeup of the Court itself is also a product of the one-sided political entrenchment that both produced and is advanced by Rucho.  Still, there are other branches of government than the Court.  In the face of this kind of entrenchment, the arc of the moral universe may be longer than usual.  But it still bends.

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