Has Anthony Kennedy Been Pushed Too Far?

I’m cautiously optimistic that he will do the right thing on the Wisconsin gerrymandering case:

In the 2004 case Vieth v. Jubelirer, the Court’s four most conservative justices held that gerrymandering cases were “nonjusticiable” — that is, even if gerrymanders violated the constitutional rights of some voters there was no possible judicial remedy. Chief Justice John Roberts made it clear at oral arguments Tuesday that he endorsed this logic, asserting that the challengers were seeking to “tak[e] these issues away from democracy” and arguing that hearing gerrymandering cases would “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”

But in the context of gerrymandering, this argument is genuinely perverse. Malapportioned legislatures are exactly the kind of problem that the judiciary is uniquely well-situated to address. Indeed, gerrymanders like Wisconsin’s have the effect of “taking democracy” from the state electorate. Opponents of it have no effective remedy at the ballot box precisely because the party that benefits from the gerrymander is massively over-represented. And, even worse, the gerrymander effectively insulates the incumbent party from accountability over any issue. If judicial review cannot address the mass disenfranchisement of voters, it’s not worth preserving.

Paul Smith, representing the disenfranchised voters, responded very effectively to Roberts. “It may be that you can protect the Court from seeming political,” he pointed out, “but the country is going to lose faith in democracy big time because voters are going to be like — everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.” To uphold extreme partisan gerrymanders in the name of democracy and preserving the integrity of the Court would be remarkably disingenuous, particularly given that it’s Roberts’ party that will derive the greatest political benefit if the Court closes its eyes to the problem.

Justice Anthony Kennedy, the Court’s swing vote on this issue like so many others, did not join the 2004 plurality opinion that gerrymandering was nonjusticiable. But he expressed concern about whether the Court could develop a standard that could inform legislatures when a gerrymander went too far. Misha Tseytlin, representing Wisconsin before the Court, tried to emphasize this point: “This Court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines,” he argued.

But this argument is unconvincing. It’s completely banal for the Court to make constitutional rulings without creating clear-cut standards that resolve any potential future case. That there might be more difficult cases in the future does not justify the Court abdicating its responsibility to enforce the Constitution. And the mass disenfranchisement of voters violates the 1st Amendment’s right to association and the equal protection of the laws guaranteed by the 14th Amendment.

Nor is it true that it’s impossible to develop a workable standard. As Yale Law School Professor Healther Gerken and several other experts argued in an amicus brief, evaluating whether districting created an excessively high partisan asymmetry is a test “highly intuitive, deeply rooted in history, and accepted by virtually all social scientists.” A ruling holding Wisconsin’s gerrymander unconstitutional could be done according to perfectly legible and workable standards. And it’s also worth noting that the same cannot be said of, say, Chief Justice Roberts’ opinion in Shelby County v. Holder, which struck down a crucial provision of the Voting Rights Act without articulating any coherent standard that would allow Congress to determine how it could effectively enforce the 15th Amendment. It’s rather hard to take seriously conservative arguments that they can’t possibly take gerrymandering cases because they can’t develop a rule that would clearly resolve any future case.