At issue was the carving of voting districts by a state legislature--here, in Wisconsin--in such a way that favors the political party in power (the Republicans) over a different party (the Democrats), in gross disproportion to the votes the respective parties received statewide, even when the disfavored party receives a majority of those votes. Several Democratic voters challenged the gerrymandering as an unconstitutional dilution of their right to vote. The Supreme Court neither rejected nor upheld their challenge.
What the Court did do was to send the case back to the court below for a fuller exploration of the question of "standing." That is, the Supreme Court returned the case to the lower federal court to allow the two sides an opportunity to more fully litigate whether the challengers had suffered a personal and particularized injury to their voting rights. If the challengers can demonstrate that, then they have the right to bring this lawsuit complaining about the gerrymandering and the Supreme Court has the constitutional authority to hear the case on appeal. If the challengers cannot so demonstrate, then the opposite.
Chief Justice Roberts wrote the majority opinion which was joined by all the Justices except Thomas and Gorsuch. Those two would simply have dismissed the challengers lawsuit and put an end to the case.
In any event, despite the Court's decision not to reach the merits of the case and to rule on the constitutionality of hyper-partisan gerrymandering, today's ruling is not without some especially notable aspects. Let's consider a few of them:
- Four of the Justices--the Court's liberals: Ginsburg, Breyer, Sotomayor, and Kagan--fully joined Chief Justice Roberts majority opinion. But they also joined together in a separate concurring opinion, authored by Kagan, making clear their shared view that hyper-partisan gerrymandering is unconstitutional. As Kagan put it: "Courts have a critical role to play in curbing partisan gerrymandering...Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law."
- Chief Justice Roberts' opinion for the Court--which those 4 liberal Justices joined--did not reject the substance of Kagan's concurring opinion. Instead, Roberts' opinion made plain the Court's view, which the liberals shared, that the question of standing had to be resolved as a threshold matter before the Court would reach the substantive merits--i.e., the constitutionality of hyper-partisan gerrymandering.
- Related to that, Chief Justice Roberts' opinion for the Court left the door open to reconsidering the Court's past decisions which severely limited challenges to partisan gerrymandering--challenges that Kagan's concurring opinion would allow. Roberts' opinion twice referred to "our cases to date." [My emphasis.] His opinion also noted that "We leave for another day consideration of other possible theories of harm" expressed in Kagan's opinion. So again, the Court did not reject the possibility of challenges to hyper-partisan gerrymandering. Rather, the Court actually suggested the possibility of revisiting past decisions in order to allow them.
- Justices Thomas and Gorsuch were alone in rejecting the Court's decision to allow the challengers an opportunity to demonstrate that their complaint is about "individual legal rights," not simply "generalized partisan preferences."
- Among the critical questions to be addressed in the further proceedings at the lower court and, ultimately, at the Supreme Court when the case almost assuredly returns are:
- Can the challengers demonstrate injury to their voting rights that go beyond their own voting districts?
- Can they demonstrate that their injury necessarily involves the neighboring districts--i.e., redrawing those districts necessarily affected their own districts and, therefore, their own voting rights?
- Can they demonstrate that their injury involves the entire statewide redrawing of districts, because that affected the statewide influence of their own district representatives?
- How narrowly personal or more broadly systemic will the Supreme Court construe the challengers' standing--and thus their right to challenge and the Court's jurisdiction to hear--complaints about partisan gerrymandering?
- Finally, the Court's narrow disposition of this case somewhat mirrors the Court's disposition of the Masterpiece Cakeshop case (where the baker refused to create a cake for the celebration of a same-sex marriage; see The Cakeshop case: What the Court Did NOT Decide). In that case, the Court refrained from deciding whether or not religious objectors are entitled to an exemption from an anti-discrimination law. Although the Court's opinion in that case outlined the pros and cons on that issue, it ruled on the narrow ground that the baker had not been given a fair hearing below. In that case, as in this gerrymandering case, the Roberts Court garnered a broader consensus, by avoiding the broader underlying question and, instead, issuing a narrower and less final resolution. This may well be the approach Chief Justice Roberts resorts to, when possible, to avoid yet another decision where the Justices are deeply divided--and embarrassingly so--along strict partisan lines.
We may get another decision in a major case this coming Thursday. There are some tough, controversial ones to come. (See Supreme Cases Awaiting Decision.) We shall see.