Concluding a Discussion of the Supreme Court's Term: Gerrymandering

Going in to this session, last October, it was perfectly reasonable to believe that we were close to something Big on the question of partisan gerrymandering. Justice Kennedy had established himself over a period of years as the swing vote here, he had also made it clear that he was looking for the right case, the right set of facts to allow him, and with him the court to say something definitive. There were at least three cases coming before him that gave him that chance.

Fourteen years ago Kennedy wrote an opinion in VIETH v JUBELIRER, that set in motion this search for the holy grail, for the case that would get him to come off of this fence. This session, surely, the time had come!

The result ... nothing. Kennedy, and with him the court, punted the ball on 4th and short.

When I say there were "at least" three cases coming before him, I have in mind GILL v. WHITFORD, BENISEK v. LAMONE, and RUCHO v. COMMON CAUSE.

GILL v. WHITFORD (June 18), unanimous decision written by the Chief Justice says that Democrats in Wisconsin have failed to demonstrate that they have standing to bring the case. Smacks of old arguments about "passive virtue." I think that was a phrase of Alexander Bickel's. https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf

Kennedy said nothing distinctive about GILL, beyond giving Roberts his vote.

BENISEK v. LAMONE (June 18), the district court had denied a preliminary injunction against the alleged gerrymandering by the Maryland legislature. SCOTUS found that the district court had not abused its discretion in doing so. Says nothing about the merits of that litigation.

Please note, the court's expressed justification for its decision, lack of standing, in the GILL case turns on the fact that the challenge there was brought against the whole of a statewide map. The challenge in BENESEK was brought on a district-by-district basis, precisely what the court in GILL was saying it wants. Still, though ... passivity.

Also, while the GILL matter was litigated on equal protection grounds, the BENISEK case was litigated on first amendment grounds, on the theory (based on Kennedy dicta) that blatant partisan gerrymandering minimizes the disaffected party's voting strength, thereby weakening associational rights of that party's members. In terms of the text of the first amendment, the language about the right of the people 'peaceably to assemble' is the associational bit.

The third best candidate for the breakthrough, RUCHO v. COMMON CAUSE (June 25), just remanded to the lower courts another controversy along these lines arising out of North Carolina, referencing GILL v. WHITFORD. A writer in Slate calls this "the punt after the punt."

I said "at least three" because the extent of the punting here depends on how one counts. The count could get as high as five. There were cases out of both Pennsylvania and Texas worth some mention in this line.

ABBOTT v. PEREZ (June 25), on its face a more conventional sort of case than the above, racial rather than partisan gerrymandering. The majority says HD 90 in Texas is a racial gerrymander. The dissenters say the matter was not properly before them yet, it was still being litigated before the district court. The district court viewed the racial bias in these maps to be much more widespread than HD 90, so the high court was reaching down to rebuke it. The four usual suspects (Breyer and the 3 ladies) were for letting the district court continue its work. Here too, Kennedy seems to have forgotten his long-standing interest in the subject, and to have quietly folding his swing-voter tent so he could line up with the rightists.

As to Pennsylvania, if none of the above four cases were the right one, the court could have taken up TURZAI v. LEAGUE OF WOMEN VOTERS, which came before it on a claim that the Pennsylvania Supreme Court, by ordering a redistricting, had violated the "elections clause" of COTUS.

The Pennsylvania Supreme Court HAD made the kind of decision people had been half-expecting from SCOTUS this term, and SCOTUS could simply have affirmed it with an opinion saying, "good job." Instead, they simply denied an application for a stay without explanation.

As Justice Kennedy heads into retirement, and good though his record may look in comparison to any likely Trump nominee: inaction was his swan song. Indecision was its key.

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