Today, the Supreme Court heard oral arguments in Rucho v. Common Cause, a partisan gerrymandering claim against North Carolina's congressional map, and Lamone v. Benisek, a First Amendment retaliation partisan gerrymandering claim against one Maryland state legislative district. Both cases were before the Court last term and were sent back to the district courts for further proceedings. As in the past, today the justices continued to search for a justiciably manageable standard for considering partisan gerrymandering claims:
Arguing for the Republican legislators this morning, former U.S. solicitor general Paul Clement urged the justices to stay out of the fray. The Constitution gives responsibility for drawing congressional districts to the political branches, he emphasized: first to state legislatures, and then to Congress itself, acting as a supervisor. There is no role for the courts, particularly because plaintiffs in partisan-gerrymandering cases have repeatedly failed to identify a workable standard for courts to use in reviewing such claims.
Justice Neil Gorsuch seemed to agree that the problem of partisan gerrymandering is one that should be left for the political branches of government to deal with. He recalled that, in the court’s previous partisan-gerrymandering arguments, lawyers for the challengers had argued that the courts are the only institution that can remedy partisan gerrymandering. But, he posited, states have in fact taken action to address the problem. . . .
By contrast, [Clement] warned darkly, if the Supreme Court were to rule that courts can review partisan-gerrymandering claims, partisan-gerrymandering cases will come to the Supreme Court – which will have to review them, because redistricting cases are among the narrow set of cases with an automatic right of appeal to the Supreme Court – “in large numbers.” “And once you get into the political thicket,” Clement continued, “you will tarnish the reputation of this Court for the other cases where it needs that reputation for independence.” . . .
[Justice Brett] Kavanaugh asked the attorneys in each case whether the Constitution requires proportional representation – that is, that a party’s share of seats be proportional to the statewide vote. He was also interested in whether proportional representation might be a workable standard for reviewing partisan-gerrymandering claims. . . .
Yet under questioning by the justices, the counsels could not provide a standard, even regarding proportional representation, that would dissuade the justices' concerns about a wave of redistricting litigation flooding the courts if the Court decided that partisan gerrymandering claims were justiciable and provide a consistent rule for courts to apply in such cases. This is not surprising, given that legal and political scholars have been arguing about this for years and have not been able to come to any consensus about what constitutes "too much" partisan influence or favor in a district map.
With no standards to apply, judges are left to invent them—or to dismiss challenges as nonjusticiable. That’s where political-question doctrine comes in. Under the Constitution, some problems have no judicial resolution and are instead left to the other, democratically elected branches. Recent Supreme Court precedent establishes two principal hallmarks of a nonjusticiable political question—constitutional text committing a choice to the other branches and the absence of judicially manageable standards. Both apply here.
Another problem is that it is impossible to decide a partisan-gerrymandering case without making an initial determination of what a “fair” redistricting scheme would look like. That’s a question of policy, not law. . . .
None of this is to suggest that each legislature’s redistricting choices are good ones; many are not. The questions are nonjusticiable not because they are easy, but because judges cannot distinguish good from bad answers without becoming politicians. If the calls for partisan “fairness” in redistricting represent a meaningful political desire, that desire will percolate through the system and translate into democratic change—like the change from appointment to election of senators. It wouldn’t even take a constitutional amendment for Congress to enact redistricting criteria limiting state legislatures’ political discretion. Proponents of fairness by lawsuit show remarkably little patience for the democratic process they claim to defend.
If the Court decides that partisan gerrymandering claims are justiciable, it will force courts to decide questions of policy and partisan advantage instead of questions of law, thereby threatening the rule of law.