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, Rucho 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 jurisdiction. Rucho 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 himself.
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 reasons.
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 no less.