A courtroom sketch from October 2018.
On its last day of the term, the Roberts Court issued rulings in two cases critical to American democracy. In one case, the Court disgracefully abdicated its responsibilities by allowing even the most extreme partisan gerrymanders to stand, no matter how strongly they entrench legislators against electoral majorities. In another, the Court prevented the Trump administration from adding a question about citizenship to the census—but the reprieve might be temporary, and it remains to be seen whether Chief Justice Roberts will hold the Trump administration to real standards.
In an unsurprising but nonetheless appalling opinion in Rucho v. Common Cause, a bare majority of the Court held that even the most extreme partisan gerrymanders present a “political question” that the federal courts cannot resolve. The case involved a particularly extreme Republican gerrymander in North Carolina and a less egregious but still substantial Democratic gerrymander in Maryland. In North Carolina, in 2012 the partisan gerrymander allowed Republicans to get 9 of 13 House seats with 49 percent of the vote, and in 2014 they got 10 out of 13 seats with 55 percent of the vote. The gerrymander, in short, grossly underrepresents the support Democrats have in the state, which not only harms the rights of disenfranchised North Carolinians but distorts the representativeness of the House of Representatives as a whole. And in Maryland, Democrats have been able to parlay 65 percent or less of the statewide vote into 7 out of 8 seats by gerrymandering a traditionally Republican district out of existence.
And yet the Court’s five Republican nominees, speaking through Chief Justice Roberts, held that even the most extreme partisan gerrymander was not a matter the federal courts could resolve. According to the majority, there are not adequate standards to allow the federal courts to determine whether a partisan gerrymander goes “too far.” Throwing up his hands, Roberts concedes that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” but nonetheless concludes that “the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” Victims of gerrymandering will have to appeal to state or federal legislatures, state courts, or (where available) to the initiative or referendum process.
Justice Kagan’s dissent, joined by the Court’s four Democratic nominees, ruthlessly demolishes the majority’s shameful abdication of the appropriate role of the federal courts. “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights,” Kagan observes. “And checking them is not beyond the courts.” Indeed, as the briefs filed by scholars in the case make clear, the very social science that allows for ruthlessly effective gerrymanders also gives the courts the tools to apply standards that allow for fair elections. This conclusion is not merely theoretical, but is evident in the actions of state courts such as Pennsylvania’s. As Kagan points out, “[t]he majority’s abdication comes just when courts across the country … have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.”
The federal courts are no less competent to handle gerrymandering claims than state courts. Of course, only state courts without Republican majorities installed by gerrymandered legislatures and chief executives can be expected to look favorably on these claims. A situation in which blue states hold fair elections and red states don’t is less than optimal, especially for the House.
Particularly specious is Roberts’s claim that disenfranchised voters can appeal to their state or federal legislators. The whole problem with gerrymandering is that voters are effectively locked out of the representative process! Roberts disingenuously cites numerous bills proposed in Congress that could theoretically address the problem, but as Kagan acidly responds, “what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.” The circular reasoning that disenfranchised voters have to appeal to gerrymandered legislatures for adequate representation is ridiculous. It’s hard to think of a case where judicial review is more appropriate.
It is also worth noting that the majority’s pretense of political neutrality is a sham. While the Court shrewdly chose one Republican and one Democratic gerrymander to make it look as if both sides were being disenfranchised equally, it doesn’t in fact balance out. It is easier for the more rural and exurban party to engineer extreme gerrymanders, so the Court’s abdication will overwhelmingly favor the party of all five members of the majority.
As bad as the gerrymandering decision is, the day could have been even worse. In Department of Commerce v. New York, the Court had to decide whether the Trump administration’s decision to add a question about citizenship to the census was legal. The lower courts found that the question was added in an “arbitrary and capricious” and hence illegal manner, even leaving aside the question of whether the question had discriminatory intent. The Court’s four liberals would have upheld the carefully argued lower-court opinions.
Four of the Court’s Republican nominees, conversely, would have allowed the question to appear in the census despite the procedural flaws and unconvincing explanations offered by the Trump administration. In their opinions, Justices Thomas and Alito dismissed claims that the insertion of the citizenship question was racist as part of the “din of suspicion” and “a sign of the times, ” respectively. What these opinions leave out, of course, is that the “din of suspicion” turned out to be eminently justified, as emails provided by the daughter of the late architect of the citizenship question, Thomas Hofeller, showed that the purpose of the question was to increase the representation of “non-Hispanic whites” and underrepresent racial minorities.
Roberts’s opinion splits the difference. He mostly sides with the administration, finding that the question was substantively valid, but that Commerce Secretary Wilbur Ross had failed to give a sufficiently reasoned explanation. According to Ross, the citizenship question was inserted to help the administration enforce the Voting Rights Act. Given that the Trump administration has literally never sued to enforce the Voting Rights Act, and its contempt for voting rights more broadly, the lie was too obvious for even Roberts to stomach. “Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action,” Roberts concluded. What was provided here was more of a distraction.”
Returning this case to the lower courts does not mean, however, that the citizenship question will not appear on the 2020 census. The Commerce Department will be given the chance to come up with a less farcical pretext for adding the citizenship question. By remanding the case, the Court does give the lower courts the opportunity to consider the evidence of Hofeller’s discriminatory intent, which may make a lower-court decision harder to overrule, particularly given that the Trump administration must settle the issue by the fall for the forms to be printed in time. But whether Roberts will continue to apply real scrutiny to the administration or will quietly accept whatever reason it comes up with later this summer remains to be seen. His opinion in the gerrymandering case leaves cause for skepticism. And it’s remarkable that four Republican-nominated justices considered an almost comically transparent lie from the Trump administration good enough.