This term’s partisan gerrymandering cases offer a rare chance for the Supreme Court to make sense of not one but two of its most convoluted and inexplicable areas of constitutional law: the political question doctrine and political gerrymandering law. Judging by oral argument last week, the Court may be at risk of squandering the opportunity. And the consequences for our institutions and our democracy would be profound.
The Political Question Doctrine
The political question doctrine (as currently conceived) presumes that there are certain categories of constitutional claims that the courts are without authority to adjudicate. This justiciability doctrine has played a large role in past gerrymandering cases, and oral argument would have benefited from a discussion about the meaning of the doctrine itself. For example, one long-running question about the doctrine is whether its limitations upon the judiciary are constitutional or prudential. From Justice Gorsuch’s line of questioning (and Paul Clement’s statements) at oral argument, however, one would never know it.
First, Gorsuch repeatedly suggests that the political
process can sort everything out, either through congressional action (e.g.,
H.R. 1) or through the state initiative process. Unlike Clement’s opening argument that the
Court cannot intervene as a matter of
constitutional meaning (an argument immediately shot down by Justice Sotomayor,
Tr. at 4), Gorsuch seems to suggest that the Court need not intervene as a
matter of discretion.
Setting aside the fact that many states do not have an initiative process (and that the conservatives on the Court may well strike down these alternatives too), the existence of political alternatives does not “relieve th[e] Court of its duty to vindicate constitutional rights,” as Allison Riggs pointed out. Rucho Tr. at 70. Congress’s power to enact the Voting Rights Act did not foreclose the Court’s responsibility to adjudicate racial vote dilution claims under the 14th Amendment, and Congress’s power to enact H.R. 1 implies nothing about the Court’s concomitant duty to resolve partisan vote dilution claims. Congress’s legislative power under Article I coexists with the Court’s adjudicative responsibilities under Article III. (A point made, coincidentally, just one year prior to Vieth by none other than Justice Scalia in Branch v. Smith, 538 U.S. 254 (2003).) Gorsuch, nonetheless, assumes throughout oral argument that the Court could choose to decline its Article III duties as a prudential matter.
Second, Clement warns that “if [the Court] get[s] in the business
of adjudicating these cases, these cases will come, they will come in large
numbers, and they will come on your mandatory appellate jurisdiction.” Rucho
Tr. at 35. Gorsuch likewise raises the
threat of a flood of cases arriving at the Court pursuant to its mandatory
Tr. at 46. As a prudential matter, the Court may be reasonably concerned about the
consequences of managing a docket full of politically charged cases. But as a constitutional
matter, it’s hard to see the relevance.
If Congress repealed the mandatory-jurisdiction statute (28 U.S.C. §
2284(a)) tomorrow, would that change the constitutionality of partisan
gerrymandering or the Court’s power (and duty) to resolve such cases under
Article III? The answer is no.
To be sure, the Supreme Court regularly (and reasonably) takes
practical and prudential considerations into account when it determines how it should be involved (and it constructs
constitutional doctrine accordingly).
What is unique here is the contention that practical and prudential
considerations alone can determine whether
the Court gets involved (under the political question doctrine). As I argue in a forthcoming article in the Indiana Law
Journal, this approach would mark an unprecedented development in political-question
doctrine jurisprudence—one with significant institutional and structural consequences
that the Court does not appear to have meaningfully considered in these cases.
In recent decades, the Supreme Court—led by its conservative members—has moved sharply away from recognizing prudential bases for declining jurisdiction, both in its standing doctrine and in its political question doctrine. In its most recent political-question cases, for example, it has silently dropped the final four Baker factors—focusing the doctrine evermore exclusively upon constitutional reasoning and interpretation. This shift has aligned with a more rigorous “structural principles” jurisprudence that emphasizes the accountability-forcing functions of federalism and the separation of powers. By this account, prudential jurisdiction is problematic because it gives one branch (and one branch only) a special “pass” when it comes to the Constitution’s checks and balances.
Reversing this doctrinal trend and choosing to cast off judicial responsibilities in such a high-profile case would be deeply inconsistent and would appear outcome-driven. One can only imagine what the “intelligent man on the street” might say if he hears that the Supreme Court has agreed that gerrymandering is unconstitutional but has split down “party lines” in deciding whether to do anything about it. As Justice Kennedy once wrote, “Abdication of responsibility is not part of the constitutional design.” Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).
If the Supreme Court recognizes that it has not only the power to intervene, but the duty
to do so under Article III, then the question shifts to the relevant
standard to apply. Roberts, Alito,
Gorsuch, and Kavanaugh all peppered the advocates with questions about how to
distinguish the various partisan-gerrymandering standards offered from a
constitutional requirement to pursue “proportional representation.” (As Clement put it, “[T]here is no one
standard deviation from proportional representation clause in the Constitution.” Rucho
Tr. at 26.)
Numerous scholars (including Nick Stephanopoulos, Justin Levitt, and Rick Pildes) have all
explained why none of the plaintiffs are advocating for proportional
representation and how their proposed standards do not impose any kind of
proportional representation requirement.
Perhaps the clearest demonstration of this, however, came from Clement
Early in the Rucho
arguments, Justice Kagan explained why “the benchmark [for an outlier analysis]
is not proportional representation.” Rucho
Tr. at 27. As Kagan stated, “The
benchmark is the natural political geography of the state plus all the districting
criteria, except for partisanship.” A
map becomes an outlier when it’s not the kind of map that would result “given the
actual political geography on the ground, unless you absolutely try to overrule
that political geography.” Rucho
Tr. at 27-28. Rather than challenging
this explanation, Clement attempts to switch back to another question and then
moves to a different argument entirely.
Justice Sotomayor soon brings the discussion back to this
issue, pointing out that legislatures can craft thousands of different maps
that balance legitimate redistricting factors in thousands of different ways
and that a partisan-gerrymandering claim only prohibits legislators from discriminating
against individuals based on their political views. Rucho
Tr. at 32. Here is where Clement,
oddly, provides a perfect explanation for how an outlier analysis does not
require legislators to pursue a baseline of proportional representation:
“Nobody thinks it’s unfair, I don’t think, that Republicans in Massachusetts under the current maps are never going to be able to elect somebody to Congress even though there’s something like 35 percent of the population, nobody thinks that’s unfair, because you really can’t draw districts to do it because they’re evenly distributed. It might be unfortunate for them, but I don’t think it’s unfair.” Rucho Tr. at 33.
As Clement points out, the geography of Massachusetts voters
makes it essentially impossible for
Republicans to have “proportional representation” in that state. In other words, a claim of partisan
gerrymandering should fail despite the
congressional delegation’s disproportionate skew.
That is precisely what the “outlier” method provides and reflects. Indeed, as Rick Pildes flagged in his post, the Massachusetts example comes from an an amicus brief submitted by mathematicians in favor of the plaintiffs:
“[E]ven some districts or plans that look gerrymandered on their face will not be flagged as outliers by this method. For instance, Massachusetts had ten House seats in the 2000–2010 census cycle, and in that period, a Republican share of 30-37% was typical in statewide races. However, not a single Republican was elected to Congress in the five races in that cycle. This may seem to provide a cause of action for a potential claim. What an ensemble analysis clearly shows, however, is that for most elections in that cycle, no valid districting plan whatsoever will have even a single Republican-favoring district. Not only a majority of possible plans, but indeed every single possible plan, produces a completely Democratic delegation. . . . Thus the method of ensembles contradicts the prima facie suggestion of a gerrymander. This example also demonstrates that the method of ensembles does not covertly enforce a proportionality standard, but instead defers to the consequences of the state’s rules and political geography.”Amicus Brief of Mathematicians, Law Professors, and Students ISO Appellees
In some states, a majority of maps within a nonpartisan ensemble might be disproportionate to voting strength given the geography of the state, the location of voters, and the neutral criteria adopted. (As Nick points out, Maryland is one such state.) In other states, a majority of nonpartisan maps might reflect rough parity with voting strength. (As is the case in North Carolina.) There’s nothing suspect, however, about the mere fact that candidates with more support will (and should) tend to have more seats under an average nonpartisan map in most states. That’s not proportional representation—that’s democracy.
Of course, the practical question remains: if intent forms
the core of the constitutional offense, then won’t the federal courts be
flooded with claims? Likely not, for two
First, as Justice Kagan points out in the Lamone oral argument, “politicians are bragging about the amount of partisanship they can put into the maps . . . because they think it’s perfectly legal to do so. If the Court said it’s not legal to do so, . . . actors would change their behavior.” Lamone Tr. at 10-11. If this direct evidence of intent fell away, proving a partisan gerrymandering case would become substantially more difficult in the absence of a truly extreme map—a dynamic Justice Kavanaugh appeared to recognize as the Lamone arguments continued. See Lamone Tr. at 55-58.
To be sure, legislators will likely continue to harbor
illicit motives in redistricting and to fight for certain neighborhoods or
communities to be placed within or without their districts to obtain partisan advantage. But in a world where legislators must justify
their decisions to the public by referencing neutral redistricting criteria and
legitimate representative considerations—and where the threat of a successful
claim discourages mapmakers from baldly seeking maximum advantage—half the work
of reining in egregious gerrymandering is already done.
Second, practical/prudential considerations (such as
concerns about undue intervention and judicial legitimacy) may not provide an
appropriate basis for declining jurisdiction altogether, but they can provide a reasonable basis
for constructing a more limited claim.
Constitutional construction does not always track constitutional
meaning, and the Court frequently underenforces constitutional rights in the
course of articulating judicial doctrine.
In short, the Supreme Court need not enforce an intent-driven claim to
its “full conceptual limits” simply because it recognizes intent as the core of
the claim. This recognition would give
the Court a freer hand in
crafting an administrable standard.
For example, the
Supreme Court could take a cue from its one-person one-vote (OPOV) doctrine and
employ a burden-shifting standard to help tamp down on litigation. In the OPOV context, the Court employs a highly
amorphous standard for judging the constitutionality
of state legislative districts (whether a state has “sacrificed substantial equality
to justifiable deviations”) but employs a bright-line population-deviation test
(10%) as a trigger for burden allocation. The former reflects faithful constitutional
meaning; the latter offers an administrable doctrinal construction. When faced with a deviation of less than 10%,
plaintiffs “must show that it is more probable than not that [the] deviation .
. . reflects the predominance of illegitimate [redistricting] factors.” Harris
v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016). Understandably, legislators have responded to
the 10% test by steering well clear of the trigger, making successful OPOV
litigation relatively rare in the modern era.
In the partisan gerrymandering context, the Court could solve
its interpretive dilemma by pairing a flexible-but-principled liability standard
with a clear-but-qualified burden-shifting standard. If, for example, a challenged district and
challenged map fall within the majority of expected nonpartisan outcomes based
on an outlier analysis, then the plaintiff could be required to show that it is
more probable than not that illegitimate considerations predominated in the creation
of the district. By definition, the
challengers’ most powerful circumstantial evidence would already be unavailable. In a post-decision world—where legislators understand
the rules of the game and do not publicly flaunt unconstitutional motives—prevailing
in such circumstances should prove extremely difficult.
And, just as in the OPOV context, legislators will still have
thousands (if not billions) of districting permutations available to them. Legislators will be free to balance the many legitimate
competing considerations that go into the redistricting calculus. And legislators will also remain free—if they
so choose—to stray outside the majority of maps within the nonpartisan ensemble
to pursue other legitimate ends. The
further they stray, however, the more implausible their justifications are
likely to be and the more litigation is likely to succeed.
This dynamic does not somehow reveal that the underlying
claim is surreptitiously requiring “proportional representation,” as Clement’s reference
to Massachusetts conclusively demonstrates.
To be sure, “[t]he closer you come to proportional representation [in
any map], the harder it’s going to be for a plaintiff to prove that there was
an intent,” as Emmet Bondurant noted. Rucho at Tr. 45. But a plaintiff challenging a district in
Massachusetts, for example, is almost certain to fail despite complete
nonproportionality in that state because the challenged district would still be
within the majority of the ensemble outcomes.
That approach also marries up nicely with the unanimous
Court’s decision last term in Gill v.
Whitford, wherein Chief Justice Roberts wrote that the injury of partisan
vote dilution “arises from the particular composition of the voter’s own
district, which causes his vote . . . to carry less weight than it would carry
in another, hypothetical district.” 138
S. Ct. 1916, 1931 (2018). If the challenger’s
district is outside the majority of districts that would be found in a
nonpartisan ensemble of thousands (or billions) of maps, then the required injury
has already been demonstrated. The
plaintiff need only pair this with evidence that the harm was purposeful to
complete the claim.
In the end, the Supreme Court’s decisions in Rucho and Lamone will have substantial institutional and democratic
ramifications whichever route the
Court takes. And while the Court may be
concerned about the implications of intervention, it should be more troubled by
the consequences of inaction. At best, a nonjusticiability holding
would be doctrinally incoherent, historically aberrant, constitutionally
questionable, and popularly indecipherable.
At worst, it might be viewed as partisan and self-interested.
On the other hand, a clear and strong holding that curbs
partisan gerrymandering would seem likely to receive widespread popular support
and boost public trust in our institutions.
Such a holding would kill two birds with one stone, bringing much needed
clarity to both the political question doctrine and the law of redistricting in
general. And if the political question
doctrine is, in fact, constitutional and not prudential, then Article III demands