Provocative Jason Willick piece at the Wash Post:
Where does Chief Justice John G. Roberts Jr. go to get his apology? His 2019 opinion that federal courts should stay out of partisan state gerrymandering battles was denounced at the time as an “abdication” (Justice Elena Kagan) and a sop to “big Republican donor interests(Sheldon Whitehouse, a Democratic senator from Rhode Island)….
Rucho is one of the reasons. With federal courts’ power over redistricting curtailed, three divided state supreme courts in the past year jumped in to overrule GOP gerrymanders — in Ohio (with a total of 15 seats), Pennsylvania (17 seats) and North Carolina (14 seats). Republicans in state legislatures objected, but on Monday the U.S. Supreme Court closed the book on the issue, at least for the 2022 election, by refusing to hear an appeal from the North Carolina GOP.
Meanwhile, state supreme courts have so far not struck down aggressive Democratic gerrymanders in deep-blue states such as Oregon (six seats), Illinois (17 seats) or New York (26 seats). And because of Rucho’s holding that partisan gerrymandering is a nonjusticiable “political question,” Republicans in those states have little recourse in the federal courts.
So much for the big donor interests. Republicans were expected to dominate the redistricting process because they fully control 24 state legislatures to the Democrats’ 14 — but that calculus didn’t take into account the way judicial politics on state courts could net Democrats about a half-dozen House seats….
Put aside the wisdom of individual state court gerrymandering decisions this cycle, which have had a clear Democratic bias. The fact that state courts are increasingly at the center of a contest over the democratic process is significant, and it could be a model for depolarizing America’s political system.
State supreme courts have faded in significance in recent decades, and the justices in Washington correspondingly loom larger and larger. As federal appellate judge Jeffrey Sutton wrote in his 2018 book “51 Imperfect Solutions,” we now live “in a top-down constitutional world, in which the U.S. Supreme Court announces a ruling, and the state supreme courts move in lockstep” to follow. The democratic distortions created by the high court’s aggrandizement are well known.
Yet the Supreme Court’s Rucho decision was an exception. It wisely walled off the justices from the politically explosive gerrymandering wars. That separation created more room for state courts to arrive at their own conclusions about what limits state constitutions place on partisan redistricting. Instead of holding life tenure, state supreme court justices are usually elected, so if voters don’t like their gerrymandering decisions, they can throw the judges out (as might happen in North Carolina this year)….
The liberal justices in Rucho (and Democrats in Congress) want to create a federal standard for redistricting, which would marginalize state courts. Now, some conservatives, out of frustration with state-court activism, are tempted to compel all states to comply with a nationwide rule of their own. Let’s hope the chief justice finds support on the court for his much-maligned but democratically sound middle way.