The Supreme Court issued two opinions with direct implications for redistricting this morning, on the last day of the October 2018 Term. In a consolidated opinion for Rucho v. Common Cause and Lamone v. Benisek, the Court held that "partisan gerrymandering claims present political questions beyond the reach of the federal courts." In Department of Commerce v. New York, the Court remanded the "census" case to the district court for further proceedings consistent with its rather confusing opinion that held both that it would be permissible for the the Department of Commerce to ask a question regarding citizenship on the census and that the Department did not provide an accurate reason for the question's inclusion.
The Court's opinion in Rucho is a victory for the proper role of the courts and respect for the rule of law. Though Democrats and liberals are decrying the decision as a failure to reign in out-of-control legislatures, the Court's decision maintains the status quo. Instead of adopting novel, creative theories regarding the "proper" partisan make-up of a legislature as rules of law--theories that did not even exist when the districts at issue were adopted and for which legal experts who support courts ruling on partisan gerrymandering cases do not agree on the best approach--the Court recognized the limitations of the courts in structure, in our Constitutional system, and in practice (internal citations omitted; emphasis added):
To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. . . . Partisan gerrymandering claims invariably sound in a desire for proportional representation. . . . “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” . . .
Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve— based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. . . .
The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. . . . Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts. . . .
Appellees and the dissent propose a number of “tests” for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties. . . .
Chief Justice John Roberts, writing for the Court, notes that the Constitution leaves decisions about districting to the states, which can choose to address excessive partisanship if the states deem it a problem, and to Congress through the Elections Clause. The courts are given no role to determine what is too partisan. Instead, "[w]hat the appellees and dissent seek is an unprecedented expansion of judicial power. . . . Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role." Chief Justice Roberts concluded that what the advocates of courts ruling in partisan gerrymandering claims sought to have the courts do was "not law."
The Court's fractured decision in Department of Commerce v. New York was substantially less clear. The Court held that the Enumeration Clause allowed the Secretary of Commerce to inquire about census respondents' citizenship status, that the decision to ask the question was not arbitrary and capricious under the Administrative Procedure Act because it was supported by the evidence before the Secretary of Commerce, and that the decision was likewise allowed under the Census Act. But the Court also held (though a different coalition of justices) that the reason for the Secretary's decision stated in litigation--better enforcement of the Voting Rights Act as requested by the Department of Justice--was "contrived" and a "distraction" and that therefore the district court was correct in seeking additional evidence from the Department of Commerce.
How the Commerce Department, which needs to print census forms for next year by July 1, 2019, is supposed to proceed from this decision is unclear. Likewise, it is unclear what principles the district court is supposed to apply on remand, though it seems clear from proceedings to this point that the district court will be skeptical of anything the Trump Administration does (to put it politely).
Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote separately to note the unprecedented nature of the Court's opinion (internal citations omitted):
In March 2018, the Secretary of Commerce exercised his broad discretion over the administration of the decennial census to resume a nearly unbroken practice of asking a question relating to citizenship. Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. That ought to end our inquiry.
The Court, however, goes further. For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. . . . The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. . . . Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA). . . .
The law requires a more impartial approach. Even assuming we are authorized to engage in the review undertaken by the Court—which is far from clear—we have often stated that courts reviewing agency action owe the Executive a “presumption of regularity.” The Court pays only lipservice to this principle. But, the evidence falls far short of supporting its decision. The Court, I fear, will come to regret inventing the principles it uses to achieve today’s result. . . .
Unsurprisingly, then, this Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was “pretextual.” Nor has it previously suggested that this was even a possibility. Under “settled propositions” of administrative law, pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake.
Justice Thomas also notes that the district court was applying a Trump-Administration specific standard in deciding the case, and he concludes by hoping that this decision will be limited to the case at issue instead of opening a "Pandora’s box of pretext-based challenges in administrative law."
Justice Samuel Alito also wrote separately to note how the decision was inconsistent with the proper role of the courts (internal citations and footnotes omitted) and that, aside from any constitutional questions, accountability lies with the political branches, not with the courts:
To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons. Of course, we may determine whether the decision is constitutional. But under the considerations that typically guide this Court in the exercise of its power of judicial review of agency action, we have no authority to decide whether the Secretary’s decision was rendered in compliance with the Administrative Procedure Act (APA). . . .
Respondents protest that the importance of the census provides a compelling reason to allow APA review. But this argument overlooks the fact that the Secretary is accountable in other ways for census-related decisionmaking. If the Secretary violates the Constitution or any applicable statutory provision related to the census, his action is reviewable. The Secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him. And the Secretary is always answerable to the President, who is, in turn, accountable to the people.
Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country. Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review. The District Court had the authority to decide respondents’ constitutional claims, but the remainder of their complaint should have been dismissed.
The two decisions issued today illustrate the importance of the courts deciding questions of law and leaving questions of policy and politics to the other branches. In Rucho, the Court recognized its structural limitations, declined the invitation to decide questions of a political nature, and thereby issued a clear decision that prevented lower courts and legislatures from having to try to apply unclear standards. In Department of Commerce v. New York, the Court went beyond the legal questions to opine on a political actor's political judgment, thereby creating confusion for lower courts and government actors who have to follow the decision.