Justices with Political Backgrounds, such as Justice O’Connor, and Judicial Oversight of Districting

As many have noted, Justice O’Connor was the last Justice on the Court who had a political background. She was the majority leader of the Arizona state senate, before becoming a judge and then Justice.

Can we say anything about how that type of background influences a judge’s view about whether courts have a role to play in constraining the political process of drawing election districts? In Justice O’Connor’s case, it led her to conclude that partisan gerrymandering claims should not be justiciable in the federal courts. When the Court first recognized a cause of action for partisan gerrymandering under the federal constitution, in Davis v. Bandemer, (1986), she wrote the principal dissent. Then in Vieth v. Jubelirer, (2004), she joined Justice Scalia’s plurality opinion that would have held such claims non-justiciable. Her dissent in Bandemer ultimately won a majority on the Court after she had left, in Rucho v. Common Cause, (2019) [disclosure: I represented Common Cause in that litigation].

To give a flavor of her view, this is one the opening paragraphs in her Bandemer dissent:

There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out — by the very parties that are responsible for this process — present a political question in the truest sense of the term.

Does this mean Justices with political backgrounds tend to see the area of districting as off-limits to the Courts?

Not at all. When the Court was first asked to hold that malapportioned legislative districts were unconstitutional, the Court in Colegrove v. Green (1946), refrained on the ground this too was a political question. But it’s noteworthy that of the three Justices in dissent, two had political backgrounds. Justice Black had been a Senator from Alabama and Justice Murphy, the Governor of Michigan. And when the Court finally did overturn this political question holding and established the one-person, one-vote principle, it was CJ Earl Warren, former Governor of California, who wrote Reynolds v. Sims (1964).

If anything, this pattern suggests it has been judges with political backgrounds who have been most strongly of the view that the courts have a role to play in overseeing political linedrawing. But that was not the case for Justice O’Connor, in the context of partisan gerrymandering claims.

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