Underneath the legalistic debate about standing, standards and statistical analysis during oral arguments in a landmark Wisconsin gerrymandering case at the Supreme Court on Tuesday, there was a deeper debate happening among the justices about guaranteeing confidence in the American democratic system.
The court is considering if it is appropriate for the judiciary to step in and strike down electoral maps that go so far to benefit one party that they violate the Constitution. And if the court can step in, the justices are trying to figure out if there is a fair standard they can use to evaluate the maps.
As they debated those questions on Tuesday, the justices highlighted a paradox as they confront an ill facing American democracy. On one side, Chief Justice John Roberts argued the court would harm democracy if it inserted itself into the political process and started striking down electoral maps. On the other, Justices Ruth Bader Ginsburg and Sonia Sotomayor argued the court would cause great damage to American confidence in elections if it did not.
The case before the Supreme Court deals with the state legislature maps Wisconsin Republicans drew after winning complete control of the state legislature in 2010. Using advanced technology, lawmakers and experts drew the maps in such a way that guaranteed their party’s continued control over the state government for years to come. The maps were so successful that Republicans won 60 of 99 assembly seats in 2012 despite only winning 48.6 percent of the statewide vote. The Supreme Court has never said gerrymandering for partisan gain can be unconstitutional, but Justice Anthony Kennedy, seen as the key swing vote in the case, has written that a standard for striking one down could hypothetically exist.
A Supreme Court ruling in favor of the Wisconsin challengers could reshape American politics by requiring lawmakers to draw maps that are more fair and competitive. At oral arguments, Kennedy at least appeared open to setting a standard to determine when gerrymandering goes too far, though it’s difficult to say how he’ll vote.
In an extraordinary moment during oral arguments, Roberts interrupted Paul Smith, the lawyer for the 12 Wisconsin voters challenging the election maps, to speak at length about his concern for the reputation of the court. Roberts said if the court decided to set a standard for saying certain cases of gerrymandering are unconstitutional, it would invite a flood of lawsuits to the Supreme Court and weaken the court’s reputation. In Roberts’ view, the average intelligent American would doubt the court was using a fair standard and think it was getting more political.
“The intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state,” Roberts said. “And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
The exchange highlighted Roberts’ concern with preserving the court’s status and Americans’ faith in the only unelected branch of government. But to some court watchers, the chief justice’s concern was ignoring the reality that many Americans see the court as a political body as is. The public’s perception of the court has also dropped since 2010, according to Gallup polling.
“The Court is already viewed as a political court,” Rick Hasen, an election law expert and professor at the University of California, Irvine, wrote in a blog post. “It is likely to be viewed as a partisan court going forward much more, now that all the liberals on the Court were appointed by Democratic presidents and all the conservatives by Republican presidents. This case is not going to do it. It is already done. The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court.”
Smith said that Roberts’ argument was so narrowly focused on preserving the court’s reputation that the chief justice was missing the broader threat to the country.
“If you let this go, if you say this is ― we’re not going to have a judicial remedy for this problem, in 2020 you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen,” he said. “And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like ― everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”
Smith’s thinking echoed that of Ginsburg and Sotomayor.
Ginsburg interrupted Erin Murphy, a lawyer defending Wisconsin’s maps, to ask why the court should protect a system that discouraged people from voting.
“I would like to ask you what’s really behind all of this. The precious right to vote, if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?,” Ginsburg asked. “Isn’t that ― what becomes of the precious right to vote? Would we have that result when the individual citizen says: ‘I have no choice, I’m in this district, and we know how this district is going to come out?’ I mean that’s something that this society should be concerned about.”
Sotomayor put the question more succinctly to Murphy, asking: “Could you tell me what the value is to democracy from political gerrymandering? How ― how does that help our system of government?”
There are historical roots for Roberts’ concern with electoral integrity. Richard Pildes, a law professor at NYU, compared Roberts’ concern over getting involved in electoral disputes to that of Justice Felix Frankfurter, who objected to the court getting involved in redistricting issues. When the court ultimately did get involved and establish it could have a say in political redistricting issues in the landmark 1962 case Baker v. Carr, Frankfurter warned it would undermine the court’s integrity.
“It may well impair the Court’s position as the ultimate organ of ‘the supreme Law of the Land’ in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority ― possessed of neither the purse nor the sword ― ultimately rests on sustained public confidence in its moral sanction,” Frankfurter wrote in his dissenting opinion in the case. “Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”
But Richard Reuben, a law professor at the University of Missouri, said it was “beneath the dignity of the court” for Roberts to suggest the court shouldn’t get involved in redistricting cases.
“This is our democracy. To suggest that we need to protect democracy by leaving in place a system that does not further it, that prohibits it from actually happening, to me is ludicrous,” he said.
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