SCOTUS Just Set Off an Arms Race

On partisan gerrymandering, Anthony Kennedy was maximum Anthony Kennedy -- puttering around, leaving open the possibility that there could be a constitutional objection without ever pulling the trigger on any individual case -- until finally he left the court, leaving the matter unresolved and the door open for the Court to do whatever it wanted.

Today, John Roberts slammed that door shut, holding on behalf of 5-4 conservative majority that partisan gerrymandering was a non-justiciable political question.

When I was but a wee lad, first encountering the political question doctrine, I did so in the context of the "one person one vote" cases. Many states had gerrymandered their legislative chambers (and sometimes congressional districts) with wildly uneven population figures -- one state senator might represent 2,000 people, another 200,000. It was a ridiculously perversion of democracy that vastly under-weighted the voting power of certain (usually urban) residents.

But in Colegrove v. Green, the Supreme Court said that it couldn't touch the issue -- it was a "political question", for which the remedy had to come through the democratic-legislative process. This, of course, was a joke: those very legislators the Court suggested appealing to were the prime beneficiaries of the gerrymandering, and by virtue of the gerrymandering were immune to even huge majoritarian pressure to redraw the lines. Of all the places to demand especial deference to the legislative process, drawing district lines is perhaps the most ridiculous. I've always taken a dim view of the political question doctrine, no doubt because Colegrove gave such a negative first impression.

It is fair to say, then, that today's decision is the worst political question ruling since Colegrove. Chief Justice Roberts even includes the same limp apologia that individuals upset with partisan gerrymandering can appeal to the legislature for change -- again, the same legislature whose power is constituted through the gerrymander. As Justice Kagan notes in dissent, this is -- to reiterate -- the worst possible location to apply the political question doctrine. And the majority's claim that the issue is just too-gosh-darn convoluted for judicial review defies credibility. Much the opposite: lower courts had been successfully converging on reasonable, common-sense standards for adjudicating these claims. The reason that the Court decided to make its political question determination isn't because there were no available justiciable standards; it's because it was afraid that there were were available justiciable standards.

So where to now? In some states, state-level litigation remains available -- though this is patchwork (it's obviously not going to go anywhere in, say, Wisconsin). Other options include using referendum to bypass the gerrymandered legislature outright and place redistricting in the hands of a non-partisan commission -- though the constitutionality of that move was only recently established via 5-4 vote in Arizona State Legislature v. Arizona Redistricting Commission, with Roberts among the dissenter and Kennedy writing the majority opinion. Fortunately, we can rely on the Roberts court to show a healthy respect for preced--sorry, I can't actually finish that sentence.

The reality is, in most states, the main effect of the Court's decision won't be to trigger some fantasy-land popular resurgence that manages to somehow leverage democratic forces of accountability on an issue that is literally designed to insulate legislators from democratic accountability. The main effect will be to trigger an arms race. And as bad as things are now, they can get much worse.

You think the 7-1 Dem/Rep gerrymander in Maryland is bad? Here's an 8-0 map -- what wonders you can do if you can just chop up the Eastern Shore to bits! What's to stop them? Why, honestly, should they stop? Do you honestly think Republicans in Florida will hesitate on this? The rational move for legislators is to try and maximize partisan gerrymandering, to lock in their own power and kneecap the opposition.

And let's not overlook the looming threat to the Voting Rights Act here. Nominally, one effect of the Court's decision is to channel more gerrymandering claims into claims of racial bias rather than partisan bias, since the former remains justiciable while the latter isn't. But we're already seeing Republicans responding to those claims by explicitly saying "our goal wasn't to disenfranchise Black voters, it's to disenfranchise Democrats -- who just happen to be Black." Put aside the Court's general hostility to the Voting Rights Act, and the overall theme of the Jurisprudence of the Second Redemption ("It is impossible for any amount of evidence to establish any government actor has ever done anything racist ever -- with the exception of when they try to help Black kids go to college"). This partisan-not-racist rationale is actually reasonably plausible -- and the Court couldn't have more openly endorsed this strategy if it had waved a green flag and sung an ode in its praise.

This Court has issued many disastrous decisions. Some of them are minor in scope but stand out for their cruelty. Others are far-higher profile in the damage they've done to our national fabric. Most of them, though, at least have the "virtue" of being the product of democratic processes that can be undone through democratic processes. This decision -- which very much should be seen as a companion to Shelby County -- degrades and decays the basic democratic quality of the American form of government. It actively resists the prospect of democratic revision; it actually encourages and will no doubt accelerate the de-democratization of the American state.

It is impossible to overstate how dangerous this is. Our country already has many -- too many -- areas designed to subvert and undermine the majority will (the Senate, the Electoral College, the colonies in DC and Puerto Rico, among others). We are sliding -- and the Court is facilitating the slide -- towards systems of permanent minority rule, where the majority is by design and in perpetuity blocked from exercising power. That cannot stand. The best we could hope for is that this pressure eventually would be released by the judicial system. With that vent now blocked, I fear we might in the future -- perhaps not the far future -- see a far more tumultuous explosion.