Read: Barack Obama goes all in politically to fight gerrymandering
Justice Elena Kagan took Kennedy up on that suggestion in a case the Court (sort of) decided last term, Gill v. Whitford. Plaintiffs argued that Wisconsin Republicans had drawn district lines to give them asymmetrical advantage over Democrats in state legislative elections. The Court, in an opinion by Chief Justice John Roberts, unanimously dismissed the case on standing grounds, sending it back to the lower court for further proceedings. But Kagan, in a concurrence joined by three other liberals, set forth a First Amendment, associational-injury theory of partisan gerrymandering that was designed to appeal to Kennedy. Kennedy did not bite and soon retired from the Court.
Although Kennedy’s replacement, Justice Brett Kavanaugh, did not decide any gerrymandering cases as a lower-court judge, his general disposition lines him up with the other conservatives on the Court who believe that the judiciary has no business policing gerrymandering. In the Maryland and North Carolina cases the Court just took, both lower courts were willing to act as the police. Because of a procedural quirk, a decision by the Supreme Court not to hear these cases would have counted as an acknowledgment that the lower courts got the question right. So there’s every reason to expect 5–4 reversals unless a conservative justice or two goes rogue, or gets cold feet.
That’s not the only cloud on the horizon when it comes to the Court and redistricting. In a 2015 case out of Arizona, as I explained in more detail in a blog post for the Harvard Law Review, Kennedy joined in Justice Ruth Bader Ginsburg’s majority opinion holding that voters have the right to use a ballot initiative to establish independent redistricting commissions. But the Arizona legislature convinced Roberts—along with three conservatives—that because the Constitution gives the power to set congressional election rules to state “legislatures,” voters acting through the initiative process had unlawfully usurped legislative power. Roberts wrote an impassioned dissent.
A case raising this question could come back before the Court soon enough from one of the other states that has established these commissions. And, should Roberts choose to spend his capital in this way, he could well reverse the Court’s very recent precedent.
This development would be profoundly troubling. It is one thing for federal courts to say that they have no business deciding how much politics is too much politics when state legislatures draw district lines. It is quite another to say that the voters of a state, acting through the powers they have under state constitutions, cannot come in and offer a solution to deal with an area of intense legislative self-interest. The Court would be ruling, in effect, that legislators may choose their voters, not the other way around, and that there’s nothing voters can do about it.