In a stinging dissent, calling the decision “tragically wrong,” Justice Elena Kagan asked, “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?” But Roberts, in his opinion, more or less agreed with her that it is not. Like his predecessor Justice Potter Stewart considering pornography, Roberts knows unfair gerrymandering when he sees it, but the problem is that he doesn’t see a way for the Court to fix it. “The initial difficulty in settling on a ‘clear, manageable and politically neutral’ test for fairness is that it is not even clear what fairness looks like in this context,” Roberts wrote. Far better to let someone else sort it out:
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. The dissent wonders why we can’t do the same. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.
Like Roberts’s notorious remark that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” while ignoring clear evidence of continued systemic racism, his suggestion here requires a certain smug and willful obtuseness about reality.
Read: The flaw in America’s “holy grail” against gerrymandering
Of course, it is true that opponents of partisan gerrymandering have succeeded at times in state courts, and voters in several states in November passed plans to make redistricting fairer. Nonetheless, Roberts’s recommendation runs directly into a catch-22: He is asking voters whose political power has been sapped by partisan gerrymandering to flex that political power to end partisan gerrymandering. Most efforts to reform the redistricting process have to run straight through the very same lawmakers who were elected using the old process and maps, and who therefore have little incentive to rework a system that’s working for them.
Roberts’s ruling that the question of partisan gerrymandering simply isn’t justiciable cleaves to the judicial modesty that he espoused during his confirmation hearings, and that the Court has often strayed from during his leadership. There is principle to his decision, but it’s impossible to ignore the fact that this judicial modesty benefits the Republican Party—at least for now, since the GOP controls more statehouses than the Democrats.
Partisan gerrymandering is, as Roberts noted and as the Maryland case demonstrates, hardly a one-sided affair. Laws and rules that benefit one party today may reverse to help the other in a different political moment. Republicans have the edge in more states now, and the Democratic Party has a structural disadvantage in its coalition: Its voters disproportionately cluster in large cities, making them susceptible to gerrymanders and wasted votes.
But what if Democrats triumph in 2020 and take over state legislatures and redistricting processes? Don’t be surprised to see Democrats who are happy to take advantage of the leeway that Roberts has granted them—and Republicans who come to see the flaws in partisan gerrymandering more clearly than they do now.