Justice Breyer Floats Idea of Nine-Part Burden Shifting Test for Partisan Gerrymandering Claims, Suggests He and Kennedy Flesh It Out Over Three Years


During an oral argument monologue lasting more than 15 minutes in a Maryland partisan gerrymandering case, Justice Stephen Breyer suggested that solving the partisan gerrymandering problem would be “simple” if the Justices simply spent enough time to develop “a multi-factor totality of the circumstances test containing at least nine elements with a burden-shifting component to ferret out unjustified partisan entrenchment.” He implored Justice Kennedy to remain on the Court through the 2020 elections to see the project through.

Following the monologue, Chief Justice Roberts commented, “Oh please.”

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