Kagan is right — but, in a different way, so is Roberts. She’s right that the task can be done if a judge is determined to do it. But he’s also right in suggesting that perhaps judges shouldn’t do it — and that a practice can constitute a threat to democracy without violating the Constitution.
Gerrymandering is indeed as American as apple pie. If a gerrymander is defined as a political structure that favors one set of interests over another, then the U.S. Senate is a gerrymander. The Electoral College is a gerrymander. I’ve always been uneasy with the notion that the rules the Constitution sets up for the operation of the federal system are somehow too sacred to be used by mere state legislatures. That’s why, although I accept the constitutional rule of one-person, one-vote, I have some sympathy for the view of the late legal scholar John Hart Ely, one of the great constitutional theorists of the 20th century: The rule is fine as far as it goes, he suggested, but absent evidence of forbidden discrimination, the courts should go no further.
The Rucho decision will by no means end this debate. Activists will continue to work in state courts and legislatures to find better ways to draw legislative districts. That seems to me the right place to do battle — as close as possible to the people who’ll be affected by the outcome.