A quick summary, with some commentary, on today’s combined ruling (Rucho v. Common Cause) on the two redistricting cases from North Carolina and Maryland:
1. By a vote of 5 to 4, the Court ruled that claims of excessive partisan gerrymandering present “political questions” that lack any judicially discoverable and manageable standards for resolving them and that therefore cannot be decided by the federal courts.
Chief Justice Roberts, joined by his four conservative colleagues, wrote the majority opinion. Justice Kagan, joined by her three liberal colleagues, wrote the dissent. (There were no additional opinions.)
Today’s ruling adopts as a majority holding the conclusion of nonjusticiability that Justice Scalia advocated for a four-justice plurality fifteen years ago in Vieth v. Jubelirer.
2. The heart of the Chief’s opinion goes something like this:
Everyone agrees that some partisan gerrymandering is permissible. The challenge is to distinguish permissible partisan gerrymandering from excessive partisan gerrymandering.
One difficulty is that it is not even clear what fairness looks like in this context: More districts that are competitive? A share of seats that approximates the proportional vote statewide? Adherence to traditional districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents? The choice among these different visions of fairness is political, not legal.
Even after you define fairness, you have to ask how much deviation from the fairness standard is too much. The Constitution supplies no answer. Nor do our precedents.
None of the “tests” proposed by the plaintiffs or the dissent “meets the need for a limited and precise standard that is judicially discernible and intelligible.” (Slip op. at 22-29.)
“Excessive partisanship in districting leads to results that reasonably seem unjust.” But that doesn’t mean that a solution lies with the federal judiciary. The states can address the issue of partisan gerrymandering, and the Constitution also gives Congress the power to do so.
3. In her dissent, Justice Kagan argues that “federal courts across the country … have largely converged on a standard for adjudicating partisan gerrymandering claims.” That standard “takes as its baseline a State’s own criteria of fairness” and then puts the burden on plaintiffs challenging a districting plan (a) to prove that state officials had the “predominant purpose” of entrenching their party in power; and (b) to show that the lines drawn had the effect of substantially diluting their votes.
Kagan argues that both the North Carolina plan (adopted by Republicans) and the Maryland plan (adopted by Democrats) are unconstitutional under this standard.
4. I’m puzzled by the attention-grabbing opening of Kagan’s dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
That sentence seems to imply that the majority believes that the North Carolina and Maryland plans each amount to “a constitutional violation.” But while the Chief does say that “These cases involve blatant examples of partisanship driving districting decisions,” he does not say that the plans are unconstitutional. His very point is that he sees no way to draw the line between permissible partisan gerrymandering and excessive partisan gerrymandering.
I also don’t understand Kagan’s “first time ever” claim. The “political question” doctrine is well established (even as its contours are disputed). By its very nature, the doctrine allows asserted constitutional violations to occur because the task of addressing whether the asserted violation is an actual violation is “beyond judicial capabilities.”
5. The Washington Post’s Charles Lane argues (as the headline of his piece accurately sums it up) that progressives “should be glad they lost” the case. I particularly like his point that the conservative justices “have renounced a power to manipulate U.S. politics that they could have used quite mischievously if the justices were indeed the partisan hacks their critics claim them to be.”
In other words, if the Left really believed its scorching rhetoric about the conservative justices, the last thing it should want would be for those justices to be distinguishing between permissible and impermissible partisan gerrymanders. Given the complexity of assessing gerrymandering, it would not be a difficult thing for a genuine Republican partisan to conclude that the North Carolina plan (favoring Republicans) is just fine but that the Maryland plan (favoring Democrats) is forbidden.