The usual form for a justice who disagrees, no matter how fundamentally, with a decision of the Supreme Court is to end the opinion with the formula “I respectfully dissent.” Justice Antonin Scalia, in particularly high dudgeon, would sometimes drop the adverb. Last week, though, Justice Elena Kagan, writing for the four justices who disagreed with Chief Justice John Roberts’s opinion in Rucho v. Common Cause purporting to withdraw the Court once and for all from passing judgment on the constitutionality of partisan gerrymanders, ended thus:
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.
Kagan’s occasion for sorrow is deep not only because the chief justice left a fundamental flaw in our constitutional democracy without hope of a judicial remedy, but because of the defective reasoning by which he came to that conclusion.
Roberts is clear and emphatic that extreme partisan gerrymanders are wrongs—wrongs of constitutional dimensions. In North Carolina, for example, voters split more or less down the middle, yet the congressional delegation consists of 10 Republicans and just three Democrats. The disfavored voters were treated unequally, their unequal treatment was due to their political commitments, and so they were given an unequal voice in the legislature. This violated not only the Fourteenth Amendment’s norms of equality, but the norms of the First Amendment, as well. Indeed, it was contrary to the most basic political premise of our government: that the people choose their representatives, not the other way around.