Support The Bulwark and subscribe today.
  Join Now

The Supreme Court’s Constitutional Cop-Out

Gerrymandering is going to become only more pervasive and pernicious.
July 3, 2019
The Supreme Court’s Constitutional Cop-Out
(Photo by Tasos Katopodis/Getty Images)

In Rucho v. Common Cause, a slim 5-4 majority of the Supreme Court refused to consider dual cases challenging political gerrymandering by North Carolina’s Republican legislature and by Democratic lawmakers in Maryland. As Justice Kagan explains in her dissenting opinion, gerrymandering allows politicians to “cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, ‘in the Government over the people.’” Even “the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles.’” 

Given that noted incompatibility, how did the majority arrive at its decision to categorically bar lawsuits challenging political gerrymandering under the U.S. Constitution?

A skeptic would argue that the solidly conservative majority (Roberts, Thomas, Alito, Gorsuch and Kavanaugh) had a political agenda. Although both sides of the aisle engage in political gerrymandering, “an Associated Press statistical analysis based on 2016 election data found that more states had Republican-tilted districts than Democratic ones.” If accurate, the data puts Rucho in the “win” column for consolidation of national power in the Republican party.

But regardless of politics, legally speaking, the majority opinion was a stretch.

The court held that federal courts lack the constitutional power to hear this sort of case, full stop. Unlike other decisions dismissing complaints for lack of jurisdiction, this one doesn’t allow a new plaintiff with a more refined injury to come back another day.  Partisan gerrymandering cases—whatever variety they might conceivably take—are entirely off limits for federal courts under the U.S. Constitution. Possibly forever. This is a big deal.

The Constitution prescribes three branches of government, and the judicial branch is allowed to decide only concrete “cases or controversies”—disputes in which there are discrete parties on opposite sides of the “v.” in a lawsuit. If a party brings to a federal court something that looks more like legislation for Congress, it might refuse to hear the case. At least for now.

In Rucho, the majority didn’t determine that there was no case or controversy. Instead, it resurrected a rarely used, judge-made standard that allows judges to wave off cases that they really don’t want to hear. The “political question doctrine” is controversial because it has no express grounding anywhere in the Constitution. It’s used to abdicate judicial oversight of certain constitutional violations, period, because federal judges happen to want it that way.

To be sure, there are areas in which the political question doctrine is relevant. Deciding how a presidential impeachment process should be carried out, for example, or when a war begins and ends, might be too politically fraught and undefined for unelected federal judges to fix.

But the multi-factored, subjective criteria for deeming something a political question are downright baffling. One of those criteria is that there aren’t “judicially discoverable and manageable standards” for resolving questions such as when a war ends. 

In most cases, judicial standards are found in statutes or even in the Constitution itself. The Fourth Amendment bans “unreasonable searches and seizures,” for example. What “unreasonable” means is an inherently vague question, but it at least gives courts a hook to hang their decision-making hats on. In Rucho, the majority concluded that partisan gerrymandering is one of those judicial quagmires for which it’s impossible to come up with a standard, i.e., a metric against which judges can decide that a particular gerrymandering job is invalid. 

Although the Supreme Court might have legitimate policy reasons for not wading into this political fray, the notion that it literally can’t come up with a test is not credible.

To begin with, as the majority notes, the court has already managed to come up with a test for racial gerrymandering. In 1993, a 5-4 majority in Shaw v. Reno concluded that if a redistricting map is “so bizarre on its face that it is unexplainable on grounds other than race,” it could be challenged under the Equal Protection Clause of the 14th Amendment. In Shaw, the court held that racial gerrymandering cases get strict scrutiny—the highest of multiple levels of judicial review for constitutional claims, which also appear nowhere in the Constitution. (The Supreme Court made them up.)

The Supreme Court manufactures constitutional tests all over the place—because it has to. The Constitution leaves lots of details unsaid. The Rucho majority explained that it could come up with a test for racial gerrymandering but not for partisan gerrymandering because “[a] partisan gerrymandering claim cannot ask for the elimination of partisanship.”

Of course, no constitutional claimant can validly expect a federal judge to eliminate any social ill. Federal courts often step in to resolve only the worst-case-scenarios—with tests that can be very hard to satisfy precisely because the Supreme Court doesn’t want every political gripe to find its way to a federal judge.

As both the majority and Justice Kagan notes, lower courts have managed to come up with a variety of tests for egregious examples of partisan gerrymandering, including under the First Amendment, on the theory that gerrymandering counts certain votes—and associations with political parties—less than others. She adds that “nearly all [Justices] have agreed on this much: Extreme partisan gerrymandering (as happened in North Carolina and Maryland) violates the Constitution.”

With the onset of technology and big data, partisan gerrymandering is destined to become increasingly pernicious and powerful, in ways that will outsmart and surprise us all. To slam the courthouse door on partisan gerrymandering problems under the Constitution forever—short of a constitutional amendment or a reversal of Rucho by a future court—is a rather maverick approach to the Supreme Court’s jurisdiction, not a conservative one.

It would have been more intellectually honest to leave the courthouse window open with a very high bar. The majority could have required, for example, that claimants show evidence of legislative intent to “draw[] districts to maximize the power of some voters and minimize the power of others,” so that “a party in office at the right time can entrench itself there for a decade or two, no matter what the voters would prefer” in order to get a judge’s weigh-in. Tests that require proof of intent (think obstruction of justice) are notoriously hard to satisfy.

By refusing to exercise their Article III prerogative and, some might say, judicial obligation to consider this case on its merits, the justices in the majority copped out. This is too bad. We are seeing way too much abdication of constitutional responsibility in government these days.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.