“Justice Kennedy Still Won’t Rule on Gerrymandering”

I have written this piece for Slate. It begins:

Justice Hamlet lives.

For years, those who’d like the Supreme Court to rein in partisan gerrymanders have been teeing up cases with various theories to try to get Justice Anthony Kennedy, the swing Justice, to agree that sometimes the drawing of district lines to favor Republicans or Democrats goes too far. In 2004, Kennedy famously wrote an opinion that both kept the door open for future redistricting challenges but also rejected a variety of legal theories that had been paraded before him like beauty pageant contestants for separating permissible from impermissible consideration of political party in drawing congressional and state legislative district lines. Since then, plaintiffs have tried to get new cases before the court for Kennedy to make up his mind.

On Monday, the Supreme Court ducked the issue again, after years of plaintiffs litigating cases in Wisconsin and Maryland in hopes of prompting a larger ruling. The court sent Gill v. Whitford, the Wisconsin case, back for partisan gerrymandering challenges to be litigated on a district-by-district, rather than statewide, basis. According to the opinion, plaintiffs had no “standing” to assert a statewide injury. The court also said preliminary relief was not proper in Benisek v. Lamone, the Maryland case, sending it back to the lower court to determine whether relief is warranted when the case is fully complete.

Although people will focus on the court’s ducking of the issue, what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.

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