To me, this is a case where it’s easy to see the virtue in both sides’ arguments. On the one hand, why should unelected, unaccountable jurists micromanage how the people’s representatives draw district lines for elections? The Constitution assigns that task to state legislatures, with Congress empowered to check a particular state legislature if it goes too far in favoring one party or the other. This is a democratic function to the core, in other words, specifically charged to political entities that are directly accountable to voters. There are a few instances based on precedent in which the Court will intervene on gerrymandering, most notably the special case of gerrymanders drawn to disempower black voters. Those are “inherently suspect” in light of America’s history of persecuting blacks and the Reconstruction amendments that sought correct that. But Team Blue/Team Red power-grabbing isn’t inherently suspect; it’s part of the constitutional scheme, plainly foreseeable to the Founders when they chose to give the districting power to legislatures. If one party abuses its power, voters will punish them by electing new reps directly or electing a Congress dominated by the other party. (For all the hype about gerrymanders entrenching partisan power, we just saw the House change hands nine months ago, did we not?) That is to say, at least in theory, this problem is self-correcting by normal democratic means.
Besides, how would one even go about deciding if a map is “too” unfair to one party or the other? Clearly some degree of partisan advantage is permissible under Article I. What sort of standard should the Court invent whole cloth to mess with that determination? Do we even trust federal judges, who are themselves partisan appointees, to be sticklers for neutrality in weighing what’s fair in partisan districting? And should they use the composition of the electorate now or try to predict its composition five years from now? This is a political question, best left to voters and their representatives to police, not a legal one.
But the counterargument has some points too. The Court has intervened in gerrymandering cases in the past when some voters’ power was too diluted, insisting on a one-man-one-vote standard that aims at rough parity. If state legislatures are free to be as partisan as they want in drawing district lines, they can undermine that standard. In fact, there have already been cases where one party has won a majority of congressional seats in a state despite the fact that the majority of voters statewide favored the other party. How does that vindicate one-man-one-vote? Nor is it simple to say “racial gerrymanders are illegal but partisan gerrymanders are okay” knowing that there’s huge amounts of overlap between race and partisanship. States like North Carolina and South Carolina have a white Republican majority and a black Democratic minority. When the legislature acts to minimize the latter’s power, are they gerrymandering based on party or on race? Also, there’s an obvious problem in trusting Congress to step in and address gross abuses of partisan gerrymandering: The freer state legislatures are to favor their own parties in line-drawing, the greater the odds that they’ll try to guarantee that Congress is dominated by their own party and thus unlikely to intervene. Elected representatives at any level are unlikely to act on principle if doing so would mean reducing their own party’s electoral power. That’s why it’s the judiciary, the unelected branch, that needs to referee this.
Besides, says Kagan in her dissent, since when is the Supreme Court shy about its own institutional capability to micromanage American society? They meddle in everything. We just got done last week with the Peace Cross case, in which Neil Gorsuch wondered why the hell the Court grants standing to people who are offended by seeing religious symbols on public ground. The Court will hear virtually any kind of dispute and yet now, suddenly, they’re bashful about their ability to monitor whether the two parties are trying to game national elections via dubious districting lines? C’mon.
Oh well, says Jonathan Adler. This is now a precedent, and you know what sticklers Democrats are about precedent, right? We’d better not hear a word about overruling this case once Dems have a majority again.
Naturally this is being heralded as the end of the world on political Twitter by lefties, but I think Vice reporter Cameron Joseph makes a good point. Given the extent of the Republican bloodbath of 2010, it’s unlikely that either party will have more of an advantage in redistricting in 2020 in the near term than the GOP had over the past decade. The dystopic scenarios in which state legislatures rig federal elections to turn their states completely (or almost completely) red or blue won’t arrive soon.