Politics as Usual

In Rucho v. Common Cause, the Supreme Court’s recent case on gerrymandering, both the majority and the dissenting opinions were heavy on pragmatics and light on constitutional interpretation. The heart of their disagreement is a difference of visions of how the judiciary ought to interact with the electoral process.

Here are a few undisputed points about partisan gerrymandering: it’s an old practice, it’s a bad thing, and it has been a cause of judicial struggle for decades. Lawmakers’ practice of drawing legislative district lines to entrench their preferred political party traces back to the Founding. The Supreme Court has scorned the practice as “incompatible with democratic principles,” and federal courts have been asked since at least 1973 to do something about it.

In its 1986 decision in Davis v. Bandemer, a fractured Supreme Court concluded that the federal courts could hear claims that a given partisan gerrymander was so excessive that it ran afoul of the Constitution. Since then, the Court has offered little guidance on the matter to state legislatures or to federal courts, even though it had such opportunities in 2004 (Vieth v. Jubelirer) and 2018 (Gill v. Whitford). The Supreme Court has never found a gerrymander to be so extreme as to violate any provision of the Constitution.

In the recently decided Rucho v. Common Cause—decided together with Lamone v. Benisek—the Court considered challenges to congressional districts in North Carolina and Maryland. Plaintiffs in each case claimed the state legislature engaged in a partisan gerrymander so extreme it ran afoul of the Constitution—to benefit Republicans in North Carolina and Democrats in Maryland. But the Court concluded that the federal judiciary is not the appropriate place for such claims and that the federal courts lack jurisdiction to hear them.

This essay looks at three aspects of the opinion in Rucho. First, it notes that both opinions avoid textualist or originalist reasoning in favor of pragmatic reasoning. Second, it describes the conflicting visions of the judicial role in the political process. And third, it looks at potential paths forward for opponents of partisan gerrymandering.

A Practical Outcome

The Court divided cleanly into two camps. Chief Justice Roberts wrote the majority opinion, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. Both opinions were heavy on pragmatics and light on constitutional interpretation.

The Court’s opinion includes a brief nod to Article III of the Constitution, which limits the power of the federal courts to hear “cases” or “controversies.” But sometimes, the opinion explains, federal courts have “no business entertaining” certain “political questions,” which “must find their resolution elsewhere.”

The Court favorably cites Flast v. Cohen for limiting federal judicial authority—an opinion that concluded that every taxpayer has standing to sue the government for spending money in violation of the Establishment Clause. The Rucho opinion also relies on Baker v. Carr’s understanding of what cases make up a “political question”—an understanding that didn’t hew terribly close to the text or original public meaning of Article III, and that opened the door for the federal judiciary’s dramatic reordering of state legislatures around the country.

The opinion then discusses how the Elections Clause of the Constitution empowers Congress to supplant state election regulations in congressional districts. Through an examination of the constitutional convention and ratification debates, the Court emphasizes that state legislatures engaged in redistricting would be “expressly checked and balanced by the Federal Congress.”

All true, and salient for the redistricting at issue in Rucho and Lamone. But it doesn’t address state legislative districts, which the Court also concluded were outside the jurisdiction of federal judicial power, and which Congress lacks power to regulate under the Elections Clause. This framing also doesn’t address how the First Amendment and Fourteenth Amendment—provisions enacted after the ratification of the Constitution—might change the analysis of whether courts have jurisdiction.

Justice Kagan’s dissenting opinion isn’t any better. The dissent frames elections through the Declaration of Independence and the Gettysburg Address, with occasional nods to precedent. But it, too, lacks meaningful engagement with the Constitution. Her dissent elides the question of which provision of the Constitution is at issue, writing instead about a more abstract “constitutional injury.”

Both opinions focus on whether partisan gerrymandering claims are a “political question,” or, more narrowly, whether there is “a lack of judicially discoverable and manageable standards” for resolving claims of excessive partisan gerrymandering.

Truth be told, a great deal of the Supreme Court’s redistricting precedents are simply non-originalist. A serious inquiry into what Article III empowers judges to decide or what the Equal Protection Clause means would likely find the Constitution has little to say about partisan gerrymandering. But it could also radically disrupt decades of decisions touching virtually every elected office. While that risk of disruption didn’t stop the Court from making this inquiry in the past, there appears little appetite on the Court to do so again. Both opinions, then, work within an existing, pragmatic framework to determine the appropriate role of the federal judiciary in the electoral process.

Before delving into that reasoning, it is worth noting one rather remarkable omission about the judicial role. Neither Chief Justice Roberts’s opinion nor Justice Kagan’s dissent spends much time on stare decisis. While the Court’s opinion doesn’t make it terribly clear, the Court effectively overturned Davis v. Bandemer, the thirty-three-year-old precedent that held that partisan gerrymandering claims were justiciable in federal court.

Justice Kagan just days earlier in a dissenting opinion in Knick v. Township of Scott lamented that a majority of the Court would breach “all the usual principles of stare decisis,” but her dissenting opinion here was notably silent on the issue.

That silence makes sense. The Court has held that stare decisis carries little weight if a previously articulated rule is unworkable. Because the Supreme Court never issued a majority rule of what excessive partisan gerrymandering claims under the Constitution look like, it’s hard to say there was anything that lower courts were working with in the first place.

The Court’s partisan gerrymandering cases also offered little reliable guidance. Because the Court articulated the legal standard only in some occasional, general gestures about what a constitutional claim may or may not include, and because it consistently articulated those standards through plurality opinions, there was little doctrine in the last three decades for parties to rely upon. Lower federal courts rarely found excessive partisan gerrymanders, and each time the Supreme Court reversed the finding, like in Vieth and in Gill. Davis v. Bandemer was among the weaker cases that could have a stare decisis claim.

A Debate about the Judicial Role in the Political Process

The heart of the conflict between the majority’s opinion and the dissenting opinion is a difference of visions of how the judiciary ought to interact with the electoral process.

Chief Justice Roberts’s opinion worries about a series of questions that would draw the judiciary into political judgments: how to rank the importance of redistricting criteria; how much deviation from the criteria is permissible; the ease of administration of any system; judicial conclusions about future voter behavior; assumptions about voter behavior and demographics; and so on. The opinion consistently doubts whether it is appropriate for federal judges to make these decisions. Those doubts, explains the majority, are consistent with the Elections Clause, which lodges that authority in the state legislatures and Congress.

Lower courts entertaining the challenges in North Carolina and Maryland purported to find workable standards, but Chief Justice Roberts emphasized their deficiencies by noting the problems of the judiciary’s assumption of political judgments. One court compared redistricting on the basis of partisanship to redistricting on the basis of race, but the Rucho majority noted that race-based redistricting is generally impermissible, while considering partisanship generally permissible (and inevitable). Another court engaged in a First Amendment test, but Rucho found that partisan gerrymandering placed no actual restriction on activity protected by the First Amendment.

Justice Kagan pushed back in her dissent. The lower courts took evidence, looked for partisan intent and partisan effect, and issued decisions consistent with the evidence. It was no more remarkable for the judiciary to engage in this decision-making process than in any other case with, say, statistical evidence or competing legislative motives. But her dissent concededly lacked the precision for lower courts that Chief Justice Roberts sought. After Justice Kagan concluded, “This much is too much,” Chief Justice Roberts pressed, “That is not even trying to articulate a standard or a rule.”

These debates have been going on among the justices on the Supreme Court for decades, and to rehash them here may feel tiresome. But there is a notable difference between the visions of the justices on the Court about the judiciary’s ability to restore citizens’ faith in the democratic process.

Justice Kagan sees a government that has become worse because of partisan gerrymandering, a “polarized political system so many Americans loathe.” (Of course, gerrymandering only occurs in the House of Representatives or state legislatures—it can’t directly affect the Senate, the presidency, or the courts, or state governorships.) If we could just improve some of the procedural rules and translate voters’ preferences more fairly, government would work better. Better-working government is good for citizens. It restores citizens’ faith in government. And if the Court can make government better, it should do it.

These reflections might be good political theory, and there’s certainly some political science supporting her claims. Other matters—like the degree to which partisan gerrymandering harms government or citizens’ trust, or what effect judges’ reduction of extreme partisan gerrymandering might have—are quite debatable. Nevertheless, her dissenting opinion remains doggedly confident that the judiciary can improve our democracy, if only given the opportunity.

Chief Justice Roberts is rather skeptical. Political theory is no match for the Constitution’s balance that lodges primary authority for this political struggle elsewhere. The Framers were aware of gerrymandering and chose not to offer the federal judiciary the power to check it. Instead, that check was left to the legislative process.

Moreover, the best government can’t come from districts drawn according to what “unelected and politically unaccountable” judges believe is fair. There are simply too many competing values to evaluate districts effectively when partisanship is the contested factor. The solution comes elsewhere—from a process of divided power, of checks and balances, and of frequent elections. Those processes may be imperfect, but it simply isn’t the role of the courts to try to even things out.

These two opinions reflect irreconcilable views of our political process. At times they talk past one another or draw opposite inferences from the same set of facts. The debate resembles the same one the Court had in the 1960s in the early days of redistricting litigation. Whether these irreconcilable views will run over into other election-related cases remains to be seen.

A Shift Back to the Legislatures and the States

In one sense, the Court’s opinion changes little practically. The Supreme Court has never found an excessive partisan gerrymander. Lower federal courts until recently almost never had, either.

In truth, there are more legal safeguards against partisan gerrymandering than there were a decade ago. The voting public has grown acutely aware of partisan gerrymandering and has expressed strong opposition to it at the ballot box. Several states have enacted ballot initiatives that require redistricting to occur by independent or bipartisan redistricting commissions. Others have placed constitutional or statutory constraints on redistricting. State judiciaries have reviewed maps.

As Chief Justice Roberts’s opinion emphasized, the political process already offers solutions, and as jurists from Justice William Brennan to Judge Jeffrey Sutton have already noted, the federal judiciary need not be the solution to all legal problems. Even so, there are reasons to wonder whether state judiciaries or redistricting commissions will do much to improve the challenges of partisan gerrymandering.

But here’s the open question. For decades, there had been the threat, if not the reality, of federal judicial intervention to curb excessively partisan gerrymanders. State legislatures have operated under the shadow of federal litigation. How states react after Rucho remains to be seen.

While the federal courts will no longer take these partisan gerrymandering claims, myriad outlets remain. Congress has actively considered legislation to curb partisan gerrymandering (but, as Justice Kagan points out, proposed bills are still not law). Future ballot initiatives, independent commissions, and state judicial tangles are all likely. The states will continue, each in its own way, to address how best to redistrict. Some will continue to gerrymander. But voters are on notice that it will be their efforts, and not those of federal judges, to move toward solutions.

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