Gerrymandering divides Supreme Court
The U.S. Supreme Court announced its long-awaited decisions in two redistricting cases this past week. The nine justices wrote three opinions to reach a unanimous decision not to decide the cases.
The question before the court was whether the federal courts could, should and would use their powers to rein in political gerrymanders.
While political gerrymanders have been present throughout American history (the original gerrymander refers to an 1810 congressional map of Massachusetts), the courts have stayed out of the business of “fixing” the problem.
However, after Baker v Carr in 1962 (a Shelby County case), the court decided that certain types of malapportionment could be heard by the courts. In 1986 in Davis v Bandemer, the court said that political gerrymanders could be addressed by the courts, but the court could not settle on a standard by which to determine how much politics in redistricting is too much.
This term, the court took two cases on the subject: one from Wisconsin (Gill v Whitford) and one from Maryland (Benisek v Lamone). A third case from North Carolina is pending but has not yet been scheduled.
In the Wisconsin case, Chief Justice John Roberts’ opinion tracked many of the comments he made during oral argument of the two cases.
In oral argument he called the mathematical formula offered by plaintiffs to prove gerrymandering “sociological gobbledygook.” The opinion goes further and finds that the “fundamental problem” of the efficiency gap is that it is about “group political interests, not individual legal rights.”
In Roberts’ words, “this Court is not responsible for vindicating generalized partisan preference. The Court’s constitutionally prescribed role is to vindi-
cate the individual rights of the people appearing before it.”
In short, Roberts sees a limited role for unelected judges in resolving fundamentally political problems. As in so many cases before the court, plaintiffs had argued that the Supreme Court must remedy the problem “because it is the only institution in the United States capable of solving this problem.”
Roberts knocked that argument down stating: “Failure of political will does not justify unconstitutional remedies.”
Furthermore, his opinion makes clear that the possibility exists for the court to reverse its opinion in Davis v Bandemer and hold that these cases are non-justiciable, meaning they can’t be heard by the courts at all.
A concurring opinion, written by Justice Elena Kagan for the four liberal members of the court, takes the plaintiff’s approach: “that practice enables politicians to entrench themselves in power against the peoples will. And only the courts can do anything to remedy the problem.”
Clearly these two views are headed on a collision course as soon as the next partisan gerrymandering case works its way to the court.
At stake are competing views of the proper role of the courts in the structure of American government. To what extent should they be utilized to solve knotty political issues?
While this case may revolve around esoteric issues of redistricting, the principle applied will have broad application to religious freedom issues, gun rights, abortion, immigration and other concerns over which the political branches of government have deadlocked.
There is much more to this non-decision than meets the eye.
John Ryder is a Memphis attorney, with Harris Shelton, who serves as Chairman of the Republican National Lawyers Association. He previously served as General Counsel to the Republican National Committee. He can be reached at ryderontheriver@gmail. com.