Last week, the Supreme Court heard oral arguments in Gil v. Whitford, a case involving the boundaries of Wisconsin state-legislative districts. The plaintiffs are asking the Court to strike down the Republican-drawn lines as an unconstitutional example of partisan gerrymandering.
Partisan gerrymandering is an unseemly part of American politics, and the lines created by the Wisconsin GOP are particularly stark. But make no mistake: Striking down the boundaries would be an enormous and deeply unsettling power grab by the Supreme Court.
Partisan gerrymandering is a very old phenomenon. The name itself — ”gerrymander” — is a portmanteau that dates back to the early 1800s, when Massachusetts governor Elbridge Gerry signed into law district lines that benefited the Jeffersonian Republicans, including one shaped like a salamander.
In fact, gerrymandering not only predates Gerry’s term as governor, but formal party organizations themselves.
The Virginia Ratifying Convention — held during the summer of 1788 in Richmond to decide whether the Old Dominion would accept the Constitution — was an epic showdown between Patrick Henry and James Madison, who both served as delegates. The eloquent and fiery Henry was a fierce critic of the new charter, while the quiet and methodical Madison was its premier advocate. Madison ultimately triumphed, albeit narrowly, and Virginia became the tenth state to ratify the Constitution.
But Henry was not satisfied to leave matters at that. He saw to it that the Virginia legislature denied Madison one of the two United States Senate seats — the legislature appointed senators in this era, and the anti-Federalist tenor of Virginia’s General Assembly made it unlikely they’d appoint Madison, who at the time was a Federalist, favoring a strong central government. Madison decided to run for the House of Representatives from his home county of Orange. Henry’s allies in the legislature then went on to draw a “gerrymander” that placed Orange County in a district with counties that had sent anti-Federalist delegates to the ratifying convention.
James Monroe — a close friend of Thomas Jefferson’s and a Madison associate who nevertheless opposed ratification of the Constitution — was induced to run for the House seat. Fortunately, Madison had once lost reelection back in the 1770s, and he knew not to take a seat for granted. He campaigned actively for the spot and won by about ten points.
Madison then went on to the First Congress, where he drafted the Bill of Rights and shepherded through the House the Judiciary Act of 1789, which organized the federal courts. He made no effort to outlaw the gerrymander or signal to the courts that such partisan actions were under its purview. Moreover, he and Monroe continued as friends and colleagues for another 20 years.
This is hardly the worst example of playing fast and loose with election laws for the sake of partisan expediency. Fast forward twelve years, to the fateful election of 1800, in Pennsylvania. Republicans won a smashing statewide victory that year, taking ten of 13 congressional seats, 55 of 78 state assembly seats, ten of 13 congressional districts, and six of seven state senate seats. Yet the Federalists still retained a narrow, one-seat majority in Pennsylvania’s state senate, owing solely to the fact that most of the chamber had not been up for election (and the 1798 cycle had been very good for them).
This was before most states held popular elections for the presidency, instead it was up to the state legislature to apportion the electoral votes. Most states did so by holding a combined session of the two chambers. But state-senate Federalists refused, knowing that it would give the Republicans an unstoppable edge. Their first and only offer was to apportion the electors 8–7 in favor of the Republicans, who finally agreed because the alternative was for Pennsylvania to not name electors at all.
These historical examples illustrate a timeless truth about republican government: It is often messy, unseemly, partisan, hypocritical, and unprincipled. Self-interested politicians double as the referees, which means that there is always a danger that the rules will be written to benefit one side over the other. Shorn of the broader historical context, any individual infraction can seem like an existential threat to democracy itself. But in fact democracy is constantly facing such threats. This is in the very nature of self-government, and it is one reason the Framers divided power among so many different governing bodies. “If men were angels,” Madison wrote in Federalist No. 51, “no government would be necessary.”
Do we really want nine isolated lawyers in Washington, D.C., making decisions about what is and is not appropriate for every legislative district in the nation?
The question is, What do we do about it? Let’s stipulate that partisan gerrymanders, at least in their extreme forms, are bad, and that technological advances in the last quarter-century have made them easier to draw. Do we really want the Supreme Court — nine, isolated lawyers in Washington, D.C. — making decisions about what is and is not appropriate for every legislative district in the nation?
That strikes me as a far greater danger to self-government than gerrymandering. After all, partisan gerrymanders are by nature ephemeral. Partisan identification is a fluid quality; electoral waves have a habit of sweeping out each side from time to time, regardless of the strength of a gerrymander; and the census every ten years guarantees that all district lines have to be redrawn eventually. Gerrymanders can be overcome, and they usually are.
On the other hand, the Supreme Court is insulated from the back-and-forth of democratic politics. If it lays down a bad or misguided rule, it will be exceedingly difficult to undo. The Court — unlike every other branch in government — has carved out for itself an unassailable authority. Its rulings are not really subject to checks and balances, let alone popular sovereignty. What it says, goes — unless or until it can be persuaded to change its mind.
If one views the role of the Court as a modest one (closer to what Madison himself held), this is not a bad thing. Indeed, it is necessary for the maintenance of the rule of law that it not be subjected to popular passions. But the 21st-century Supreme Court has claimed a seemingly unlimited portfolio for itself. It fancies itself a super-legislature, and it uses the law as a pretext to intervene anywhere and everywhere that the moral sense of five justices happens to be offended.
Let’s hope that a majority of the justices will recognize that gerrymandering and similar partisan games are as old as self-government itself. Let’s hope that the justices will exercise a little modesty, for a change, and allow the people to sort these issues out for themselves.
— Jay Cost is a contributing editor of The Weekly Standard and the author of A Republic No More: Big Government and the Rise of American Political Corruption.