Justin Levitt: The Soft Bigotry of Low Legislative Expectations (Rucho Symposium)

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

Last Thursday’s Rucho majority opinion brought many indignities.  The shadowboxing with strawmen, in the form of proportionality claims no litigant put forward.  The cursory declaration of the issue as beyond plausible judicial management, when five federal courts and 14 federal judges (3 in MD, 3 in MI, 3 in NC, 3 in OH, 2 in WI, not to mention 5 state judges in FL and 5 state judges in PA) had somehow managed to manage it just fine.  The (continuing) privileging of the 1787 Constitution at the (continuing) expense of the reallocation of rights and duties wrought by the Reconstruction Amendments, and the related sideswipe at race-consciousness.  The faux-naïve paean to normal legislative politics as the route out of a problem created by newly emboldened partisan entrenchment in the legislature itself. 

Ultimately, though, what you heard most after Rucho was the groan of lost opportunity.  The clearest cases of partisan excess found their way to the Court at the same time, wrapped with a bipartisan bow and an abundance of jurisprudential options.  The whole thing was gift-wrapped.  The Court picked up the gift, and threw it in the trash.

In terms of immediate practical impact on the law, the Court’s decision didn’t actually change all that much from the familiar landscape of decades.  We’re essentially back where we were in 2015, before Whitford v. Gilltriggered a short-lived consensus.  Federal courts (lookin’ at you, Illinois) were largely unsympathetic.  Some state courts were curious; some were not.  Ballot initiatives could (and did) catch fire where the mechanism was lawful.  All of these fights will continue, with vigor.  But where state courts are hostile and citizens’ initiatives unavailable, Here be There Gerry-Manders. 

However, the fact that the legal landscape isn’t all that novel should not be confused with an assessment that nothing has changed.  Partisan politics continues to polarize, and even after substantial Democratic wins of 2018 pushed back on the Republican victories two years earlier, an alarming number of states seem to have cemented unilateral partisan control of the process.  Rather than calling on the better angels of our nature, the Supreme Court’s opinion gives cover to partisans of both major stripes to indulge their worst instincts.  Buckley really created the legal conditions for SuperPAC aggregates of ultrawealthy individuals, but it took the social permission of Citizens United to supersize them.  Rucho may have a similar effect.

This permission comes from a concerted lack of precision embedded in the Court’s determination to duck.  First, the Court conflated political choices with partisan ones.  Political choices are unavoidable in redistricting, just as political choices are unavoidable in taxation: in a world of contested values, the decision to connect two sides of a river or to stop at the water’s edge is inherently political.  This does not mean that the same choice is unavoidably or inherently driven by the pursuit of partisan advantage.  It may have partisan consequences, but it needn’t have a partisan motive.  That distinction passed the Court by.

The Court also conflated partisan choices with those that are provably partisan.  Call me starry-eyed and naïve, and tell me that every legislator is a partisan snake, and still I say it’s a different matter to prove that proposition.  Given myriad districting choices, only a small set of particular extremes can be provably identified as nakedly partisan.  That feature might have neatly allowed the Court to cut off the worst of the worst.  Instead, the Court conflated political with partisan, and partisan with provably partisan, threw up its hands at the purportedly inevitable and called the whole thing an unresolvable morass.

And then went further still.  The Court didn’t just say that it couldn’t tell legit plans from those infected with tribal partisanship.  It said that a low-grade infection was fine.  A healthy dollop of intentional gerrymandering for partisan advantage appears to be affirmatively constitutional. 

To be sure, that notion had previously shown up in dicta in race cases (as an odd form of legal defense), or in individual plurality opinions.  But here, it has majority backing, for what I believe is the first time. 

This is not a small matter.  This Court believes that a government may constitutionally set out to use state power to disadvantage citizens based on the political party they support.  “As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech,” Justice Roberts reminded us not five weeks ago.  Just not when it comes to setting electoral ground rules.

It used to be that redistricters at least had to pretend to be serving the general public over their partisan ambitions.  That put at least a modest limit on entrenchment.  Under federal law, no longer.  Moreover, permission to openly use government power to punish the opposition — even if only a “little bit” — is a difficult principle to cabin, in scope as much as degree.  Add this to the list of norms we’re likely to miss when it’s gone.

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