When the Supreme Court agreed to hold a full hearing in the Maryland redistricting case, Benisek v. Lamone, many of us wondered why the Court set a full hearing rather than simply hold the case for resolution of the Gill v. Whitford partisan gerrymandering case from Wisconsin, which the Court heard in October. I advanced four possible theories: congressional vs. state redistricting; one district challenge vs. statewide challenge; First Amendment theory vs. equal protection theory; and Democrats as bad actors vs. Republicans as bad actors.
But as the transcript of today’s oral argument in the Maryland case shows, the most likely reason for the full argument is that the Court has not reached any agreement on how to resolve the earlier Wisconsin case, and setting this gives the Court more material to potentially work with.
If that was the plan, however, it did not go well. Just look at the words in the headlines of articles rounded up by Howard from today’s arguments: “no consensus;” frustration,” “elusive,” “struggle,” “grapple,” “befuddle.” It was pretty clear from reading the transcript that there were many Justices who both found the Democratic gerrymander in Maryland egregiously bad, and easy to prove with bad intent. But there were also many Justices (some of the same Justices) who were entirely unsatisfied with a test which would ask, as plaintiffs claim, whether this is simply a question of bad partisan intent. And nary a word about the “efficiency gap” or other standards which were bandied about in the earlier Wisconsin oral argument.
Things were so bad that Justice Breyer suggested setting Wisconsin and Maryland for reargument in the fall, along with a pending North Carolina case which was waiting in the wings. Some of us saw this as a plea to get Justice Kennedy to stay on the Court to see this to the end. Lyle Denniston wonders whether Breyer was bringing out an idea that had already been discussed behind closed doors But it sure seemed like the Justices were no closer to deciding Maryland or Gill after this argument than before it. And perhaps the befuddlement and frustration over the issue is leading to the loss of productivity on the part of the Court, which is behind on issuing opinions this term.
So what might happen next? I was struck in the Maryland argument at how easy it would be for the Court to punt in this case. It involves a preliminary injunction, where there is great discretion in the district court, and which is not a final decision on the merits. The Justices (thinking of the Purcell principle) openly questioned whether it was too late for there to be a remedy in time for 2018 even if the Court set out a standard. It would be very easy for the Court to issue a non-opinion getting rid of the case at this stage and putting the issue off for a few years. Wisconsin could also be disposed of on technical grounds like standing.
Doing so no only prolongs an ultimate decision on the question, but it also potentially would have the Court make the decision with new personnel. If Justice Kennedy is indeed the swing vote, it is, as I told NPR’s Nina Totenberg, put-up-or-shut-up time: ‘We’ve got to start policing this’ or he has to recognize that what is going to happen in the next round in 2020 is going to look a lot worse than in this round, that it’s going to be no-holds-barred, squeeze out whatever you can, in favor of your party and against the other party.”
There may not be a perfect solution here, but if the Court cannot come up with something, and puts the issue off for another day, the last best chance to rein in partisan gerrymandering by the federal courts may be lost for at least a generation.