Judge Kennedy’s silence speaks loudly in dispute
The Supreme Court’s conservative justices were in a lather Tuesday over the potential repercussions of a ruling that would force judges to insert themselves into the political business of drawing election maps. But Justice Anthony Kennedy just leaned back in his leather chair and smiled.
In a heated, hour- long debate about the very building blocks of American democracy — districts drawn by politicians, for politicians— it was Kennedy’s relative silence that seemed to speak volumes.
Cast accurately as the likely deciding vote, the 81- year- old Californian directed tough questions to the lawyers defending lines drawn by Wisconsin’s state legislature that have locked in hefty Republican majorities since 2012. If such partisanship was required by state law, he asked, wouldn’t that be unconstitutional?
By the second half of the argument, when Chief Justice John Roberts and other conservatives on the court warned that a decision against partisan gerrymandering would constitute judicial activism and inundate courts with future challenges, Kennedy was silent.
Perhaps, it seemed, he agreed with Paul Smith, the lawyer representing those challenging the Wisconsin maps, that only courts ( and commissions) can stop legislators from drawing maps that guarantee one- party control of a state’s legislature or delegation to Congress.
Unless the court intervenes, Smith warned, “in 2020 you’re going to have a festival of copycat gerrymandering, the likes of which this country has never seen.”
In three landmark cases from 1962, 1986 and 2004, the high court has failed to define how much gerrymandering of districts is too much. Liberal justices have found it unconstitutional; conservatives have said it’s the legislature’s prerogative. Kennedy remained in search of a standard.
Two years ago, he joined the court’s narrow majority in ruling that states can try to remove partisan politics from the process by creating commissions to take the job away from legislators. Justice Ruth Bader Ginsburg noted in her opinion that Kennedy previously called partisan gerrymandering “incompatible with democratic principles.”
The issue is reaching the high court at a time when both Republicans and Democrats have improved the art of drawing congressional and legislative maps to entrench themselves in office for a decade at a time. Computer software increasingly helps them create safe districts for their most conservative and liberal candidates, whose success invariably leads to more polarization and partisan gridlock in government.
Still, Republicans and others who defend the Wisconsin maps say Democrats’ disadvantage is due to factors such as geography, the quality of candidates and the power of incumbency.
Asked by Justice Neil Gorsuch, a constitutional stickler, whether it is Congress’s role to intervene rather than the court’s, Smith had a ready response: “Politicians are never going to fix gerrymandering. They like gerrymandering.”
But if Kennedy, who is contemplating retirement, wants to join the court’s four liberals in a landmark decision that reins in partisan gamesmanship, there remains one very sticky problem for the court to solve: How?
Challengers offered three ways, based on scientific criteria, to judge whether the placement of Republicans and Democrats by districts goes too far. Each requires setting thresholds for “partisan asymmetry”— how different the districts can be without violating voters’ free speech or equal protection rights.
“I think the hard issue in this case is, are there standards manageable by a court?” liberal Justice Stephen Breyer said. He then defined the factors that might attract five votes: One- party control, partisan asymmetry, persistently partisan results, and maps that are among the most extreme in the nation.
“Sociological gobbledygook!” Roberts snorted. If the high court rules for the challengers, he said, most people would see that as a political decision favoring Democrats over Republicans. He said that would bring “very serious harm” to the court’s reputation and produce a plethora of new gerrymandering claims — “and every one of them will come here.”
Gorsuch argued that finding a formula for discerning impermissible line- drawing would be as difficult as replicating his favorite steak rub.
“What’s this court supposed to do,” he asked — “a pinch of this, a pinch of that?”