How Badly Did the Supreme Court Damage Democracy Today?

The big nine. Photo: Mandel Ngan/AFP/Getty Images

Intelligencer staffers Benjamin Hart and Ed Kilgore discuss two major rulings handed out on the Supreme Court’s final day of its term.

Ben: Today we had two huge Supreme Court rulings that cut to the core of how democracy functions in America. In one, to the dismay of Democrats and the court’s liberal members, SCOTUS ruled that doing anything about partisan gerrymandering was beyond the scope of federal courts, and should be left to Congress and/or state legislatures. In the other, Chief Justice John Roberts sided with the liberals to block Trump’s beloved citizenship question from appearing on the Census — at least for now. What’s the final scorecard on damage to the republic from the Supreme Court’s final day?

Ed: Depends on a couple of things, including your expectations on gerrymandering (mine were low), and the ultimate outcome of the Census case (which nobody knows).

Ben: Low because Anthony Kennedy’s exit made clear that there would not be five justices who think partisan gerrymandering is a sufficient enough problem to regulate it?

Ed: Yeah, the last best hope for a SCOTUS intervention to stop the most egregious kinds of gerrymandering probably vanished when Kennedy punted on the Wisconsin case and then retired.

For years gerrymandering opponents had been trying to design a quantitative measurement of and remedy for gerrymandering for the sole purpose of pulling Kennedy over the line, and then they ran out of time.

Ben: This is a case where the whole Merrick Garland debacle really might loom large.

Ed: No question about that — not to mention the 2016 election debacle. We are living in a debacle-rich era.

Ben: Is the redistricting ruling a complete disaster, though? As you said, it merely upholds the (admittedly broken) status quo. And there has been significant progress on gerrymandering in recent years in states like Pennsylvania, as the issue has become increasingly salient to outraged Democrats.

Ed: I’m of two minds on that. On the one hand, as Elena Kagan’s dissent points out, this retreat on gerrymandering coincides with a period of vastly more sophisticated map-rigging schemes based on very granular data. The impact of partisan gerrymandering is becoming more egregious every decade. On the other hand, there are remedies other than federal court intervention, and this may help energize alternative approaches.

And yeah, the Pennsylvania development last year, wherein the state supreme court found that a gerrymander violated the state constitution, was a possible harbinger — along with the fact that SCOTUS turned down Republican efforts to get it overturned.

Ben: Going back to the census decision: This is not a pure victory for the plaintiffs, or for Democrats. Four conservative justices voted to let the citizenship question, which would almost certainly result in a significant undercount of minorities, proceed as is. Roberts disagreed, but only because he didn’t find the Trump administration’s obviously bogus rationale for adding it — that it was all about enforcing the Voting Rights Act — persuasive.

President Trump tweeted that he wants to delay the Census until the case goes back to the Supreme Court in the fall, with a new, slightly slicker justification for the question. But Census officials have said they’re running out of time to start printing the forms that go out next year. What’s your sense on the chances of the question appearing despite today’s ruling?

Ed: I think the chances are reasonably high. Before instructing Commerce to come up with that “slicker” rationale, Roberts demolished every objection to the citizenship question other than a pretty narrow statutory requirement of a plausible rationale. So if the administration is already abandoning its original position that the forms have to go out right away, they should be able to satisfy Roberts. I’m a little unclear how this will work procedurally, though, since a New York district court is in the middle of all this.

Ben: So, even the “good” ruling might turn out to be a disaster in the end. Heartening!

Ed: There ought to be consequences for Commerce Secretary Wilbur Ross, since he clearly lied to Congress about the rationale for the citizenship question, but this isn’t an administration that thinks lying is a problem. Or that it needs to cooperate with congressional questioning of lies.

Ben: And much of the Supreme Court doesn’t seem to think lying is a problem, either.

Ed: Today’s theme for the conservatives of the court seems to be: “Yeah, but it’s Not Our Problem.” Though they’d call it “judicial restraint.”

How Badly Did the Supreme Court Damage Democracy Today?