One would be hard-pressed to find a more hackneyed Supreme Court opinion than Chief Justice Roberts’s majority opinion in Rucho. It is replete with mis-directions, such as the boogeyman of proportionality when the plaintiffs expressly eschewed proportional representation as an end; unburdened by its tautological reasoning, such as the attempt to distinguish the population equality cases from partisan gerrymandering on the ground that population equality is constitutionally required but partisanship is not prohibited by the Constitution; and it displays a faux judicial modesty that has become a Roberts staple—it’s not us, he writes, but the Constitution, or the Framers, or the responsibility of Congress (recall Shelby County). Roberts firmly rejects the sensible individual rights, right-to-vote framing anchored in the Fourteenth and First Amendments. Instead, he casts the case, bizarrely, as a structural invitation for the Court to allocate political power between two dominant political parties, an invitation any sane person would reject.
These moves were unsurprising. As we noted in this Article for the Harvard Law Review, there’s a story that the Court tells itself, what we called the narrative of nonintervention, once it decides not to regulate the ground rules of the democratic process. The narrative of nonintervention relies on distinctions that are as predictable as they are unpersuasive. Rucho is the narrative’s latest installment. Once Roberts decided against judicial review, he had a clear script to follow and he followed that script. In the end, however, it is hard to take the case seriously as doctrine. Justice Kagan’s dissent is a masterclass in laying bare the banality of the majority’s reasoning.
What worries us most about Rucho are the expressive messages communicated by the case. Three are particularly concerning. First, Rucho unequivocally communicates the Roberts Court’s deregulatory posture. The Court majority seems to favor a no-holds barred, anything and everything goes, political process. The only ground rules that the conservative majority is willing to enforce are constitutional rules striking down political spending limits and to a much lesser extent political contribution limits. This Court turns the Madisonian experiment on its head; it understands and furthers a constitutional project that protects the power of the politically powerful.
Second, we’re concerned about what Rucho might mean for the use of race under section 2 of the Voting Rights Act and the use of race under the Fourteenth Amendment. In the wake of Rucho, parties will once again find it hard to resist packaging partisan gerrymandering objections as racial gerrymanders or as racial vote dilution claims and vice versa, racial gerrymanders as partisan gerrymanders. Because different regulatory rules apply to similar phenomena, this presents an arbitrage opportunity. Our worry is that the conservative majority on the Court will exacerbate the problem by making clear that race-blindness is the constitutional standard in the law and politics domain. Current doctrine is almost there anyway. This will of course make it harder for voters of color to prove racial discrimination, unless the discrimination is absolutely clear and easy to prove.
Third, we are concerned that Rucho might send a message that extreme partisanship is normatively desirable both as means and ends. As we’ve previously observed, “the failure to hold the line on partisan manipulation in the domain of political gerrymandering sends a message of tacit approval of the manipulation of electoral rules for maintaining or acquiring partisan power in other domains.” Additionally, given the expressive nature of Supreme Court decisions, state actors may readily conclude that extreme partisanship can’t be objectionable if the Supreme Court decided not to do anything about it. Put differently, the political process solutions that the Court maintains are available outside of the federal judiciary are not independent of the Court’s decision in Rucho. Rucho seemed propitious because the tide appeared to be turning against extreme partisanship and in favor of fairness and legislation toward the public good. The question is whether Rucho will be an outlying point in what seemed like a slow march toward fairness, or whether it will be a significant contributor to a reversal.