After the five conservative justices of the Supreme Court essentially greenlighted the practice of partisan gerrymandering by deciding they could not weigh in on the issue’s “political questions,” Justice Elena Kagan denounced her colleagues, arguing that the majority shirked the high court’s responsibility to help protect democracy.
“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote, reading her blistering dissent from the bench Thursday, a move that generally indicates deep disagreement with the majority opinion.
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.
In a 5-4 decision divided along ideological lines, the court’s conservative justices, led by Chief Justice John Roberts, effectively allowed partisan gerrymandering or redistricting to move forward. Roberts’ majority opinion argued that the high court should not weigh in on the issue and instructed lower courts to dismiss legal challenges in North Carolina and Maryland.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Roberts wrote.
Writing the liberal justices’ dissent, Kagan took deep issue with the majority’s core claims, and characterized gerrymandering as “anti-democratic in the most profound sense.”
“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives,” she wrote.
In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
She blasted what she said was the conservative justices’ failure to recognize the urgency of the issue, labeling it “saddening nonchalance about the threat such districting poses to self-governance.”
Dismissing the majority’s point that gerrymandering has existed for hundreds of years as “complacency,” she argued that today’s technology and data allow for “unprecedented efficiency and precision” in creating electoral maps, which will likely worsen the practice, she wrote.
“The majority’s idea instead seems to be that if we have lived with partisan gerrymanders so long, we will survive,” she wrote, before noting that “the effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s — let alone the Framers’ — gerrymanders.”
What was possible with paper and pen — or even with Windows 95 — doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, ‘we the people’ become sovereign no longer.
Kagan also countered the majority’s claims that it is exceedingly difficult for judges to develop “politically neutral” or “manageable” standards for partisan gerrymandering — pointing out that in several states, lower court judges have indeed implemented independent standards to evaluate claims of unfairly drawn electoral maps.
In response to the majority’s argument that the issue was beyond the court’s purview and can instead be repaired with legislation, she argued that it was in politicians’ interest to continue partisan gerrymandering.
“The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight,” she wrote, noting that while legislators have frequently introduced bills on the issue, “what all these bills have in common is that they are not laws.”
When reviewing the facts of the case, she pointed out that all of the justices were in agreement and that “the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles,’” she wrote. “That recognition would seem to demand a response.”
In criticizing the majority’s decision not to weigh in, Kagan argued that judicial standards fundamentally obligate courts to intervene “in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms” ― such as the pair of gerrymandering cases before the court.
“In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong,” she wrote.
Throughout the dissent, Kagan warned of the consequences of the justices’ decision on the country’s core principles.
Hailing Election Day as “the foundation of democratic governance” and “what links the people to their representatives, and gives the people their sovereign power,” she lamented that the partisan gerrymandering could ultimately “make it meaningless.”