The Willful Blindness of the Supremes

Today’s landmark Supreme Court ruling on partisan gerrymandering (Rucho et al v. Common Cause et al) is likely to go down in history as another in a series of key decisions by the Roberts court that poisoned American democracy–like Citizens United (which opened the flood gates for money in politics) and Shelby County v. Holder (which gutted the Voting Rights Act).  Whether the poisoning is fatal or not remains to be seen.

What all these cases share is a deliberate blindness of the court’s majority to the real world outcomes of their legal reasoning and a passive-aggressive theory of judicial restraint which asserts that the courts are powerless to step in to right wrongs even when they are acknowledged to exist. All were decided by 5-4 split decisions, and all prompted bitter and lengthy dissents from the justices in the minority. All were intensely partisan. These are the Plessy v. Ferguson and Dred Scott decisions for our time, and their impact will likewise be felt for decades.

This could have been a chance for the court to show a principled evenhandedness on this supercharged issue. The Maryland case in question favored Democrats and the North Carolina case favored Republicans, so the optics would have given cover to establish that the courts have the power to restrain egregious partisan gerrymandering. Instead, the Supreme Court majority got the vapors and declared that the problem was too hard because there was no objective way to decide how much was too much and therefore it could do nothing. This kicks the issue back to the states who did the gerrymandering in the first place, thus effectively making the practice entirely legal.

The ruling does not, however, affect Democrats and Republicans equally. While it’s true that “both sides do it”, in this century partisan gerrymandering has been much more aggressively pursued by Republicans and with great success. Academic analysis has consistently shown that partisan gerrymandering has given Republicans a built-in advantage of at least 20 seats in the House of Representatives and that their advantage in state legislatures is often much greater. Republicans have total control of 30 out of 50 state legislatures, and therefore control how both state legislature and US House districts are drawn. They have just been told that partisan gerrymandering is just fine.

The decision is perhaps no surprise, given the hyperpartisan nature of the Roberts court, but the reasoning presented is odd indeed. Read it yourself here.

The ruling accepts that the Court can rule on some electoral issues, including racial gerrymandering. “In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts…Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid.”

But, according to the court, partisan gerrymandering is different. Legislators can take partisan interests into account because the Framers entrusted districting to political entities. “The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.”  The court then cites another 5-4 ruling in a 2004 case (Vieth v. Jubilirer) in which the late Justice Scalia held for a 4 justice plurality “that the plaintiffs’ claims were nonjusticiable because there was no ‘judicially discernible and manageable standard’ for
deciding them.” Justice Kennedy joined in that ruling, but “left open the possibility that in another case a standard might emerge.” The ruling goes on to say that “the question is one of degree: How to provid[e] a standard for deciding how much partisan dominance is too much.” I.e., the Court admits that there could be too much partisan gerrymandering, but how would it determine when it reaches that point?

The ruling then claims that what this is really about is proportional representation (“Partisan gerrymandering claims invariably sound in a desire for proportional representation“), and launches into a disquisition about how the constitution does not require that. And how would you determine what “fairness” is, anyway? As Scalia wrote, “‘Fairness’ does not seem to us a judicially manageable standard.” There follows a lengthy discussion of well-known issues in drawing districting maps, and it concludes that “it is only after determining how to define fairness that you can even begin to answer the determinative question: ‘How much is too much?’ At what point does permissible partisanship become unconstitutional?”

Next the Court goes on to deny any equivalence to racial gerrymandering. “Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.”

This assertion is perhaps the strangest of the entire ruling, because racial gerrymandering cases are precisely about fairness in power and influence. Moveover, racial and partisan gerrymandering often coincide or overlap. Many of the the most notoriously contorted congressional districts were drawn deliberately to pack African-American voters in a single district. This does two things: 1) it assures at least a few African-Americans would be elected to Congress, but 2) it also minimizes the impact of African-American votes in “white” districts. And, because black voters tend to vote overwhelmingly for Democratic candidates, such gerrymandering also impacts the partisan distribution of power. The sentence about asking for elimination of a racial classification is simply baffling. 

The lower court ruling (which is here being overturned) cited “predominant intent” which had been used in the racial gerrymandering context. “In racial gerrymandering cases, we rely on a “predominant intent” inquiry to determine whether race was, in fact, the reason particular district boundaries were drawn the way they were. If district lines were drawn for the purpose of separating racial groups, then they are subject to strict
scrutiny because ‘race-based decisionmaking is inherently suspect.‘” But “determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper. A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.'”

The Court here seems to be saying two conflicting things. First it says that there could be too much partisan gerrymandering to be constitutional (but the problem is how to determine what “too much” is). Then it states that gerrymandering for partisan advantage is actually “permissible intent”. So if it’s permissible, how could there ever be too much of it? And if it’s possible to render a judgment on fairness based on some standard in racial gerrymandering, why isn’t that possible in partisan gerrymandering?

Rather than parse that logical conundrum, the Court then washes its hands of the problem. “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” It says that if the courts were to intervene, that would be “an unprecedented
expansion of judicial power.”

Then come the “thoughts and prayers”:  “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.” So what’s the answer? The states, of course! The very ones who approved the partisan gerrymandering in the first place!

The ruling then notes that some states have somehow managed to determine standards for fairness in districting–something that the Court just declared itself incapable of doing.

Or maybe Congress? The ruling notes: “The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering.” Oh right, that’s HR1, the”For the People Act” that the Democrats introduced this session to address problems such as voting, money in politics, redistricting, and ethics, and which Republicans vehemently oppose. It faces certain death in the Senate at the hands of Mitch McConnell, and if it miraculously ever passed, certain veto by Trump.

Or maybe the “Fairness and Independence in Redistricting Act”, which the Court notes “was introduced in 2005 and has been reintroduced in every Congress since.” Indeed. It has been reintroduced over and over again, because it was never passed.

The Court concludes “No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” So gerrymander all you want, we’re not going to stop you.

Some had hoped that on this key case Chief Justice Roberts, out of concern for maintaining a veneer of judicial integrity, would break ranks with Thomas, Alito, Gorsuch, and Kavanaugh, whose votes were preordained. But no. On this as on Citizens United and the Voting Rights Act, he knew what the answer had to be and came up with a rationale, however flimsy, to justify it. I think we can regard his vote in another case that put a temporary stop to including a citizenship question on the census as a gesture of atonement. Or at least an attempt to reclaim some shred of a reputation as something other than a partisan operative.

It’s worth your time to read Justice Kagan’s blistering dissent here (it comes at the end, after the majority ruling.) It demolishes the majority ruling point by point and begins thus:

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the courts…In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”