The question is not whether there is a problem, but how to solve it. Yesterday, in Rucho v. Common Cause, the Supreme Court said: Don’t look at us. In a 2004 decision, the Court had declined to strike down a partisan gerrymander, but it dangled the possibility that it might overturn a more extreme gerrymander in the future. Encouraged, reformers had no trouble finding outrages to challenge. In Rucho, the Court slammed the door against such challenges and locked it. “Partisan gerrymandering claims are not justiciable,” wrote Chief Justice John Roberts for the majority. Translation: Go away and don’t come back. The Court’s four liberals were scathing in dissent.
Why, then, was the Court’s ruling the least bad decision? Three reasons: political, constitutional, and prudential.
First, political. Although no one these days has a kind word to say about gerrymandering, it is a hallowed American tradition, dating back to the Founders’ era. When a practice has been around that long, we need to consider the possibility that it may serve a purpose beyond just rigging the system.
And so it does. In the American system, where every federal officeholder except the vice president is independently elected, legislative leaders can lead only if they can give followers an incentive to follow. To hold politicians accountable to one another (which the Constitution does not do), political parties and machines emerged. Their M.O. is to reward loyalists with goodies like pork-barrel spending, campaign money, endorsements, and—most important—easy reelection campaigns. By building safe districts, party leaders are able to protect incumbents who take tough votes on, for example, raising a tax or cutting a popular program. If, in contrast, every seat is always competitive, incumbents will survive by pandering to pressure groups. Reducing political competition is thus not always a bad thing; it can provide political heat shields for hard choices.
The point is not that gerrymandering is always good or always bad, but that gerrymandering is a tool that political leaders can use for good, ill, or some combination of the two. Take away that tool, and government may become even more chaotic and disorganized. We have seen more than enough dysfunction created or exacerbated by well-intentioned reforms already.
Because the gerrymander is inherently a political tool, courts are poorly equipped to decide when it can be used, by whom, and to what extent. Courts will look for bright lines that don’t exist. They will consider politics too much, or not enough, or they will get the politics wrong. They will sow confusion by issuing vague and sometimes conflicting guidelines. They have tunnel vision, because they can look only at the facts of the case before them and at the legal precedents that apply. And with their unelected, life-tenured positions, they will not be politically accountable for the results. The one foreseeable result of turning judges into redistricting referees is that the results will be unforeseeable. Whatever those results may be, they will have the force of the Constitution behind them, making them difficult to reverse.