In my Daily Beast review of Justice Stevens new book, Six Amendments, I was pretty tough on Justice Stevens. I focused on campaign finance, but there are problems throughout the book on questions of drafting of the amendments and his reasoning (note today’s Liptak column in which Justice Stevens cannot even tell us how he would deal with the media exemption, one of the key questions in overturning Citizens United etc.). Josh Blackman, to give another example, notes the poor drafting of Justice Stevens’ attempt to overturn Second Amendment jurisprudence.
I wanted to focus a bit more here on partisan gerrymandering, on an issue which did not make it into the Daily Beast piece. In his ABC interview, Justice Stevens says “it doesn’t take a genius” to recognize political gerrymandering—basically that gerrymandering can be determined from the bizarre shape of the district. When the interviewer, George Stephanopoulos analogizes this to Potter Stewart’s pornography standard (“I know it when I see it”), Stevens agrees and says Stewart would have agreed with him on political gerrymandering.
Whether or not Justice Stewart would have agreed with Justice Stevens (I’m skeptical, given his dissenting opinion in Lucas), Justice Stevens’ take in his book on political gerrymandering is wholly unconvincing. Here is his proposed amendment:
Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
The language of the proposed Amendment would have courts decide how “compact” is compact enough and what the definition of “preserving the political power of the party in control of the state government means,” As with the other amendments, these leave room for very wide and varying judicial interpretations.
But more to the point, I don’t think the Amendment reflects the standard Justice Stevens would use, this Amendment focuses on intent, but in the book and the ABC News interview the Justice says he would focus on the physical appearance of the districts. Twice in his book he analogizes partisan gerrymandering questions to the racial gerrymandering cases. “As our racial gerrymandering cases demonstrate, the courts are fully capable of recognizing and remedying such a violation.” Further, discussing the 1993 case of Shaw v. Reno, Justice Stevens writes:
While [the Court in Shaw v. Reno] recognized that a state legislature is not entirely prohibited from acting with consciousness of race, it concluded that racial gerrymandering is impermissible whenever race was the legislature’s “dominant and controlling rationale” in drawing district lines. There is no reason why that test should not also apply to political gerrymanders like the one that Governor Gerry and his fellow Republicans designed in 1812.
Justice Stevens omits the key fact that he dissented in Shaw and in all of the racial gerrymandering cases of the Court. He does not believe that such districting violates the Constitution. He explains that the Shaw dissenters “thought that race-conscious districting for the purpose of benefiting minority voters was permissible….”
But that was not the sole basis for the dissents in Shaw and in the racial cases. Further, unlike racial categories, political categories are much harder to characterize, and social scientists and courts have struggled with workable definitions of the term “partisan gerrymandering.” At the very least, we deserve an explanation as to how a partisan gerrymandering test would be workable when he believes a racial gerrymandering test would not be.
“I know it when I see it” pretty much sums up the Justice’s explanation of this amendment. Like much else in the book, Justice Stevens does not offer a clear and full defense of his controversial ideas. Perhaps a full defense would be convincing. Too bad we do not have one to consider.