The traditional opening of a new session of the U.S. Supreme Court is the first Monday in October. This year that day is October 2.
The very next day, October 3, the Court will hear arguments in one of the most watched cases of the new term, Gill v. Whitford, otherwise known as the “Wisconsin gerrymandering” case.
In recent decades the Court has drawn a sharp distinction between racial and partisan gerrymandering. When the issue is race, then proof that the predominant motive for giving a district a particular shape was the hope of giving a white candidate an advantage over a black opponent will suffice to condemn that exercise. But the Court has rejected attacks on districting in ways that blatantly advantage one political party over another, even if that was precisely the goal.
In a concurring opinion in one partisan-gerrymandering case, Vieth v. Jubelirer (2004), Justice Kennedy held out some hope for plaintiffs in this area. He said that the court may strike a partisan gerrymander if the plaintiffs could come up with a judicially administrable standard of what is permissible or impermissible in this area. But he also said he didn’t know of any such standard yet.
In Gill v. Whitford, the plaintiffs have taken him up on his suggestion. They propose a three part test, which they also believe they can meet. A partisan gerrymander is illegitimate, they say, if it has (1) a partisan motive, (2) that results in a large and durable partisan effect, (3) that is unjustified by legitimate districting factors. The key question at oral argument is likely to be whether the plaintiffs can make more specific the second prong of this fork, a satisfactory measure of partisan effect.
Left Wing View
In the state elections of 2012 in Wisconsin, the Democratic Party won more than half of the votes cast but only 40% of the seats in the legislature. They blamed it on the redistricting of that legislature the year before.
The court split 5 to 4 in Vieth v. Jubelirer. This is why so much attention in this case focuses on Kennedy’s concurrence in that one: he was the swing vote. On one side, Justice Scalia wrote for himself, Chief Justice Rehnquist, Sandra Day O’Connor, and Clarence Thomas, dismissing disputes over political gerrymanders as “nonjusticiable.” On the other side, there were three dissenting opinions, by Justices Souter, Stevens, and Breyer. There were four dissenters (Ginsberg joined in Souter’s’ opinion).
Souter expressed a view common to the dissenters, writing that in the years leading up to that decision, “the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.” It was “high time” that the court stepped in to limit that dreadful sort of efficiency, in his view.
In the middle, then, there was Justice Kennedy and his concurrence. Kennedy voted with the bloc of four led by Scalia, because as he wrote there are “weighty arguments for holding cases like these to be nonjusticiable.” Yet he did not want to “bar all future claims of injury from a partisan gerrymander.”
Though the composition of the court has changed since 2004 it still appears likely that Kennedy will prove the swing vote. It seems plausible that Chief Justice Roberts, along with Justices Thomas, Alito, and Gorsuch, will vote to uphold Vieth and the nonjustifiability of such claims. Likewise, Justice Breyer and Ginsberg may cast their votes again, as they did in 2004, for a judicial intervention. That would leave the matter, once again, up to Kennedy.
On social media, the leftward voices declare gerrymandering “straight up unconstitutional.”
Right Wing View
But then, that may not be how things line up. After all, redistricting in one area in which Justice Thomas, usually a reliable “right wing” vote in ideologically charged matters, has surprised people. Thomas broke rank with conservatives just this spring, in the (racial) gerrymandering matter of Cooper v. Harris.
Nonetheless, the general conservative view in the traditional media and social media alike aligns with the Scalia opinion in Vieth. The right argues that districting is a vital function of the legislative bodies involved, that judicial intrusion is an overreach of Warren Court vintage, and that the Wisconsin case simply presents another excuse for such an overreach.
Rick Esenberg, writing in National Review, contends that the Wisconsin Republicans “respected traditional rediustricting principles. The maps were contiguous and compact. There were no bizarrely drawn districts resembling ink blots or coiled snakes.”
More to the point, Esenberg writes, “in straining to decide how much partisanship is ‘too much,’ courts inevitably plunge themselves into our political wars.”
The Wisconsin state senate itself, in an amicus brief to the Supreme Court, express doubt that there is any such creature as “a standard by which courts can adjudicate partisan gerrymandering claims,” and contend that even if there is such a standard, “it is not one that treats the natural consequences of political geography as evidence of a plan’s unconstitutionality.”
In Breitbart, Logan Churchwell has argued that the tendency of litigation like Whitford is to “remove legislators – and their constituents by extension – further from the redistricting process favoring … a commission approach,” in short, a technocracy.