Justice Stevens on Redistricting and Courts in the Political Thicket

From the SCOTUSblog interview:

Question: Let me ask you a more substantive question, arising from your discussion of Reynolds v. Simsand the voting rights cases that the Warren Court decided.  One thing that you have long urged is that the Court ought to care a lot more than it does about partisan gerrymandering.

Justice Stevens: Absolutely.

Question:   And at the same time, of course, you also have argued that the Court should stay out of politics in certain instances.  I wonder how you would envision the Court getting involved in something as crass and divisive as partisan gerrymandering while maintaining the public perception of political independence.

Justice Stevens:  Well it goes back to the fundamental equal protection principle that government has the duty to be impartial.  When it’s engaged in districting it should be impartial.

Nowadays, the political parties acknowledge that they are deliberately trying to gerrymander the districts in a way that will help the majority. I just read a newspaper article the other day about the Maryland redistricting, which is designed to help the Democrats.  That’s outrageously unconstitutional in my judgment.  The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts.  And the government ought to start with the notion that districts should be compact and contiguous as statutes used to require.

Question:   And you think that if the Court got involved in reviewing these kinds of redistricting plans that there would be a way to fend off accusations that the Court is choosing sides in political warfare?

Justice Stevens:  Oh absolutely.  If the Court followed neutral principles in whatever rules they adopted, the rules would apply equally to the Republicans and Democrats.  I think that line of cases would generate a body of law such as the one-person, one-vote cases that would be administered in a neutral way.  This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct.  Indeed, I think that the Court’s failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies now that wasn’t true years ago when I worked on a sub-committee of the House Judiciary Committee.


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