Of all the Hail Marys in this election cycle, this one was the Hail Maryest. Republicans in Pennsylvania asked the Supreme Court to overturn a decision by the state supreme court that imposed new congressional districting on the state, putting the GOP in danger of losing several House seats. To no one’s great surprise, the Supreme Court declined the opportunity to intervene — even with newly seated Brett Kavanaugh on its bench:
The U.S. Supreme Court on Monday rebuffed a bid by Republican legislators in Pennsylvania to reinstate a congressional district map struck down by that state’s top court as unlawfully biased in favor of Republicans.
The justices rejected the appeal of a January Pennsylvania Supreme Court ruling invalidating the Republican-drawn map because it violated the state constitution’s requirement that elections be “free and equal” by marginalizing Democratic voters.
Opponents of legislative-drawn districting had hoped to win big cases at the Supreme Court last term over partisan imbalances in order to push redistricting into the purview of the courts. The courts have already taken some interest in redistricting under the Voting Rights Act to ensure that gerrymandering doesn’t dilute the impact of minorities. So far, though, the Supreme Court has passed on the opportunity to expand that scope, gingerly working cases brought by both Republicans (Maryland) and Democrats (North Carolina).
In this case, though, the fight had already taken place in Pennsylvania under state law rather than federal law. Whether the Pennsylvania supreme court ruled wisely or not, it doesn’t rise to the level of federal jurisdiction, as Bloomberg points out:
The rebuff seals a rare victory for opponents of partisan gerrymandering. The case was unusual because the Pennsylvania Supreme Court relied on the state constitution to strike down the map. That largely put the case beyond the purview of the U.S. Supreme Court, which lacks authority to second-guess state courts on the meaning of their own constitutions.
In other words, while this cuts against the GOP’s immediate interests in Pennsylvania, it serves another interest: federalism. The Constitution gives the states the authority to apportion their populations into congressional districts as they see fit. That’s why the desire to get federal courts involved in that political process is an appeal to judicial activism of the sort against which Republicans routinely rail. Refusing to interfere within the state’s processes qualifies as a passive sort of judicial modesty of the kind that the GOP has demanded and championed when it comes to appointments to the federal bench, and especially with the Supreme Court.
It would only have taken four justices to take up this case. Kavanaugh’s appointment might have been enough had he been the kind of partisan tool that his opponents claimed during his confirmation process. It’s impossible to know how he voted on the cert grant request, of course, but the fact that it failed is an indication that interventionism isn’t on the rise with his appointment. It also provides an indication that the new Supreme Court is unlikely to interfere with the redistricting process when it comes to partisan balance by making that a federal issue of interest.
For Pennsylvania Republicans, it’s still bad news in the short run. Democrats will get a windfall of seats in next week’s elections thanks to the new map. In the long run, though, Republican efforts to reaffirm federalism and judicial modesty may well be taking root. That would be a long-term win for effective democracy in a representative republic.