Why the Supreme Court Keeps Dodging the Question of Partisan Gerrymandering

Artful dodgers.

When Chief Justice John Roberts heard Gill v. Whitford, a closely watched case that could’ve changed the future of our democracy for the better, he recoiled at the prospect that a forthcoming ruling might be seen as a mere product of politics — or the Supreme Court choosing “the Democrats over the Republicans.” In open court, he worried that such public perception might “cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.” In his world, the Supreme Court is an agnostic, apolitical body — above and beyond the influence of partisanship or corrosive forces that have nothing to do with the law.

Now, near the end of the current term, Roberts achieved what he wanted not just in Gill, but also in a lesser, companion case, Benisek v. Lamone, each a dispute that presented the high court with a claim that, for decades, has remained unanswered, if not wholly unrecognized by the courts: What can we do about partisan gerrymandering? Racial gerrymandering — that is, the intentional manipulation of district boundaries in a way that disfavors black and Latino voters — has already had its day in court and been found unconstitutional or unlawful under a complex line of precedents. But partisan gerrymandering, which relies on the party affiliation of voters to “pack” them or “crack” them into given districts, has so far evaded a definitive adjudication.

With Gill, the judicial dodging continues. And to justify it, and leave things unresolved for another day, Roberts managed to get unanimous consensus from his colleagues for the view that the Democratic voters who challenged as too partisan a particular set of legislative maps in Wisconsin have no standing to bring that claim in court.

Standing is a strange little procedural requirement that the Supreme Court pretends to wield impartially and according to a neutral set of principles. But as we’ve seen in high-stakes disputes over affirmative action, immigration, and textual attacks on the Affordable Care Act, the justices don’t always practice what they preach — they’ll either find or ignore the existence of standing if they so wish, often with little or no explanation. And maybe as part of the jockeying for votes that happens behind the scenes, Roberts convinced even the four more liberal members of the court to join him on the standing question in Gill, rather than perhaps seeing the case get dismissed altogether.

But here’s where things get weird. Under the law, Roberts should have dismissed the case. That’s the rule: Where there’s no standing, there’s no case, and the whole thing gets thrown out of court. Not here: “This is not the usual case,” Roberts wrote. “It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved.” So the aggrieved Democratic voters lost the battle at the Supreme Court. But their fight now continues in the lower court, where they “may have an opportunity to prove concrete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.” The move seems to have rubbed Justice Clarence Thomas and Justice Neil Gorsuch the wrong way, who didn’t join that part of the chief’s opinion.

And so we have yet another major dodge in what could’ve been a watershed constitutional ruling in these partisan times that we live in. Justice Elena Kagan — writing separately and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor — charted a course for the Wisconsin plaintiffs, and others who may feel so led, on how they could later press their claim in the lower courts and make it stick. But before she did that, she took care to remind the nation that the Supreme Court, cautious though it may have been overall, does have the power to end partisan gerrymandering, self-interested politicians be damned. “Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms,” she wrote.

Kagan’s entreaties, more than anything, are aimed at an audience of one: Justice Anthony Kennedy. He didn’t write a single thing in Gill, and yet he remains the main reason partisan gerrymandering doesn’t get any traction at the Supreme Court. Since you need five votes to make law, so far it is Kennedy’s insufferable indecision that’s holding the court back from making much noise moving forward in a way that’s meaningful for voters. Quoting at length from one of his past opinions, Kagan reminded the senior justice that there’s a First Amendment “associational harm” that stems from partisan gerrymandering:

Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched (neither packed nor cracked). His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party. This is the kind of burden to a group of voters’ representational rights Justice Kennedy spoke of.

(Roberts too quoted Kennedy’s own past work on more than one occasion, which signals that he was, yet again, the linchpin everyone was trying to curry favor with.)

After laying out her theories of how partisan gerrymandering should be dealt with in the future, and more overtures to Kennedy, Kagan then threw the ball right back to Roberts himself: “I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.” Kagan packed so much punch in her concurrence, Roberts must have felt the sting and felt compelled to advise lower courts to not read too much into it. “The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other,” he wrote rather curtly, seeming to cast aspersions on what he deemed “speculative and advisory conclusions” by his junior colleague. Call if judicial mansplaining, if you will.

In the Benisek case, brought by a group of Republican voters from Maryland who had complained that they, too, had been unconstitutionally gerrymandered on the basis of their party affiliation, the dodge was subtler: Rather than a lengthy ruling espousing competing views, all the high court did was just issue a terse, five-page unsigned opinion declining to offer relief because the voters took too long to sue.

So in the end Roberts dealt a body blow to both Democrats and Republicans and averted the thing he most fears: breathless headlines screaming that the Supreme Court just gave a major win to either political party. And he may have even prevented a constitutionally illiterate tweet by Donald Trump, who never misses a chance to make people stupider about the court’s work. Both the Wisconsin and Maryland cases will continue in the lower courts and they may yet rear their heads again. But that doesn’t matter. The chief found a way to resolve two sticky cases in an already sticky term by simply dancing around the hard questions. He won’t get to relish this punt for very long: A new partisan gerrymandering challenge from North Carolina is already waiting in the wings.