Law & the Courts

Right on Gerrymandering, Wrong on the Census

(Leah Millis/Reuters)

John Roberts took a starring role in two major decisions today: He wrote a correct opinion on partisan gerrymandering, and a troubling one on President Trump’s effort to ask a question about citizenship on the 2020 census.

The gerrymandering issue, as far as the courts should be concerned, is simple. Under the Constitution, the legislature of each state gets to decide how congressional elections are handled, subject to any laws the federal Congress chooses to enact. It was clear to the Founders that politicians, being politicians, might draw district boundaries in ways that served their political interests. They made this the rule anyway.

Moreover, even if the practice of partisan gerrymandering violated the Constitution somehow, it would be impossible for courts to decide when it had happened and how much of it was too much. It is not as simple as checking to see whether a party’s vote share is proportional to its seat share: Some constituencies cluster together more tightly than others do, and the “natural gerrymandering” that results will affect this comparison.

The Court was therefore entirely right today in its 5–4 Rucho decision. Partisan gerrymandering is a “non-justiciable” issue. The judicial branch has no business rejecting district maps drawn by the very legislatures that the Constitution empowers to draw them, merely on the grounds that the politicians on the legislatures acted in political ways. Moreover, it would hardly be a boon to democracy to take these decisions away from legislatures and give them to courts.

And as Roberts notes, keeping the courts out of the way is not at all the same thing as banning all efforts to restrict gerrymandering. Congress has explicit constitutional authority to change federal-election rules whenever it wants. And states have taken numerous steps to limit the extent of gerrymandering their legislatures can get away with, from spelling out specific criteria that must be used to creating, via ballot initiatives, independent commissions to handle the task — though this last approach raises constitutional questions of its own, as Roberts himself explained in a 2015 dissent.

Roberts’s work in the census case was far more troubling. Working in concert with the Court’s liberals in a decision with a confusing mishmash of opinions complementing and contradicting his own, he found that Trump had failed to comply with the Administrative Procedure Act.

The truth in the decision is that the administration’s process was chaotic and unprofessional, leaving behind a trail of evidence that the government’s stated justification for the citizenship question (that it would aid enforcement of the Voting Rights Act) may have been a pretext (critics charge the true intention was to reduce immigrant response rates on the census, and thereby reduce congressional representation in immigrant-heavy blue states). As the Court notes, the secretary of commerce’s “director of policy attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Office of Immigration Review before turning to the VRA rationale and DOJ’s Civil Rights Division.”

But as Clarence Thomas and Samuel Alito spelled out in separate opinions, it is not the Court’s job to play psychoanalyst, and the decision paves the way for courts to scrutinize policymakers’ motives much more broadly. The president has much discretion when it comes to census questions, discretion freely given him by Congress. The census has asked about citizenship numerous times stretching back about two centuries. The Court’s job was to make sure the administration had an adequate explanation for adding the question back in — as Roberts conceded it did — not to look behind that explanation for ulterior motives.

“If this case is taken as a model,” Alito wrote, “then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual. What Bismarck is reputed to have said about laws and sausages comes to mind. And that goes for decisionmaking by all three branches.”

Since Trump’s election, liberal judges have adopted the stance that the usual rules don’t apply; that the president’s unusual — and, yes, frequently lamentable — approach to governing requires abnormally high levels of judicial oversight, future consequences be damned. This time, Roberts joined in.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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