In the children’s game of telephone, one kid whispers a phrase to the next kid, who passes it along to the next, and so on, until the kid at the end of the line announces what he has heard—usually something very different from what the first kid actually said.
Some Supreme Court justices seem to be playing their own game of telephone. But given that opinions are written, they don’t have the excuse of having difficulty remembering what they’ve heard. And they took only one or two turns to mess things up badly.
I was very surprised to read this passage in Justice Kagan’s concurring opinion in yesterday’s political gerrymandering case (Gill v. Whitford):
Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.”
I was even more surprised to see her trace that proposition back to Justice Scalia’s plurality opinion in 2004 in Vieth v. Jubelirer. Here’s the citation that follows Kagan’s passage:
Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1) (quoting Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); alterations omitted).
In his plurality opinion in Vieth, Justice Scalia (joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas) opined that claims of political gerrymandering are nonjusticiable. In the course of reaching that conclusion, he rejected as unworkable the standard that the challengers proposed: under that standard, a plaintiff would have to “show that the mapmakers acted with a predominant intent to achieve partisan advantage.” (Scalia’s italics.) That standard could not simply be borrowed from the racial gerrymandering context, Scalia explained, as it would be far more difficult and far more disruptive to apply to claims of political gerrymandering. Drawing district lines, after all, “unsurprisingly … turns out to be root-and-branch a matter of politics,” and “the fact that partisan districting is a lawful and common practice means that [unlike with racial gerrymandering claims] there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation.” (Scalia’s italics; my underlining.)
Scalia referred in his opinion in Vieth to Justice Stevens’s “judgment” of the “incompatibility of severe partisan gerrymanders with democratic principles” (my underlining), and he further stated that he did “not disagree with that judgment.” But it’s clear in context that he is attributing to Stevens the question-begging assertion that “an excessive injection of politics is unlawful” (Scalia’s italics). Scalia’s point is that there are no judicially discernible standards for distinguishing the “severe partisan gerrymanders” from the ordinary ones.
So how did Scalia’s observation that “partisan districting is a lawful and common practice” and his deliberately tautological observation about the “incompatibility of severe partisan gerrymanders with democratic principles” (again, my underlining) get translated into his supposed recognition that “[p]artisan gerrymandering is ‘incompatible with democratic principles’”?
As Kagan’s citation shows, step one was the Court’s majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015). In the second sentence of her majority opinion, Justice Ginsburg asserts:
“[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.” [Ginsburg’s quotations marks and brackets]
For this proposition, Ginsburg cites Scalia’s plurality opinion in Vieth, along with Justice Kennedy’s opinion concurring in the judgment. Note that Ginsburg drops the word “severe” from the quotation in a way that dramatically alters Scalia’s meaning.
In step two yesterday, Kagan eliminated the clutter of Ginsburg’s brackets. In citation jargon, she “omitted” the “alterations.” But she retained Ginsburg’s major alteration of omitting Scalia’s qualifier of “severe.”
If some justices want to embrace the folly that all partisan gerrymandering is “incompatible with democratic principles,” at least have the decency not to impute that folly to Justice Scalia.