In an interview with the dean of Georgetown University Law School on Thursday, Supreme Court Justice Elena Kagan expressed her dismay with the Court’s recent decision regarding partisan gerrymandering, even going so far as saying that she will “never accept” the Court’s decision. In Rucho v. Common Cause, the majority held that partisan gerrymandering claims present political questions and are, therefore, beyond the reach of federal courts.
Justice Kagan’s remarks highlight the fundamental ideological disagreements between conservatives and liberals on the role of the courts and the scope of their power. She noted:
"I am a hundred percent certain in every bone of my body that the majority was acting in complete good faith as to why it reached the decision it did, but I do think it got it wrong," adding, "and that was one which was a kind of, you know, I want everybody to be thinking about this going forward."
In the Court’s majority opinion for Rucho, Chief Justice John Roberts clearly lays out why partisan gerrymandering claims are incompatible with constitutional standards:
Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws. Vieth, 541 U. S., at 278, 279 (plurality opinion). Judicial review of partisan gerrymandering does not meet those basic requirements.
The Court’s decision in Rucho and redistricting will be discussed at this year’s National Election Law Seminar on August 2 and 3 in Charlotte, North Carolina. Tickets for the 2019 National Election Law Seminar can be purchased here.