Take a Gander at this Gerrymander

I’ve got an update for you related to a very important – arguably the most important – Supreme Court case being decided this term.  But first, here’s a good rule of thumb when it comes to the Supreme Court: it’s never a smart idea to try to predict the outcome of a case.gerrymandering cartoon

Even though you may think you know where a particular Justice’s ideological leanings will cause him/her to end up, and even though the questions a particular Justice asks during oral arguments may seem to make it obvious which side they’re sympathetic to, there will always be cases that end up surprising you.  While many Supreme Court cases these days do turn out exactly the way we expect them to, even the most seasoned Court watchers have felt the sting of a bad prediction coming back to smack them in the face a time or two.

Caveat Predictor

The best example of this came a few years ago in National Federation of Independent Business v. Sebelius.  This case is better known as the one in which the constitutionality of Obamacare’s individual mandate was challenged.  Oral arguments in the case were heard in late March, 2012.  Based on the questions offered up by the various Justices during those oral arguments, most Court watchers & political junkies predicted that the mandate would be found unconstitutional.  (And they further deduced that there was a decent likelihood that the entire Obamacare law would be overturned with it).

But the Court wouldn’t announce its decision in the case until late June of that year.  So for the next 3 months, we read endless analyses in the news of what would happen once the law was overturned.  The predictions that the Court would overturn the mandate were so widespread that during those 3 months it became pretty much conventional wisdom throughout the media & political world that Obamacare was over before it had even gotten started (remember, the law wasn’t to be fully implemented until 2014).

Then, on June 28 of that year, much to everyone’s surprise (shock, even), the Court announced its decision to uphold the individual mandate.  Even more surprising, it was not Justice Anthony Kennedy – the usual swing vote in these controversial cases – who had joined with the Court’s four liberal Justices to uphold the mandate.  Instead, Chief Justice John Roberts was the fifth vote to uphold the individual mandate, and thus the entire law.  Six years later, this entire issue is of course now moot, due to the just-passed GOP tax plan, which repeals the individual mandate. But Obamacare was given a chance to get off the ground with the mandate intact, thanks to a completely unpredictable ruling by the Roberts Court.

Buuut . . . Do As I Say Not As I Do

Having said all that, I’m about to do exactly what I just warned against and try to read a few tea leaves on one of the Court’s most important cases of this term. Why am I about to do something so foolish?  Well, because in the blockbuster cases such as the one I’m about to talk about, the Court usually doesn’t announce its decisions until the end of its term in late June.*  And that gives us a lot of time between now & then to impatiently wait and wonder about the outcome.  So in the meantime, why not have a little fun, and try to satisfy a bit of our curiosity, by playing Supreme Court detective??

But I made sure to begin the post with all of the above to make the point that we can’t ever really predict what the Court is going to do.  We can look for all the clues, pick up any bread crumbs they drop for us, and summon all our prior knowledge about the Court – but at best it’s still just an educated guess.

In any event, we do now have some new bread crumbs about a very important case I’ve told you about here previously: Gill v Whitford.  This is the case originating out of Wisconsin in which the Court will decide the permissibility of partisan gerrymandering.  The Supreme Court has previously determined that racial gerrymandering is unconstitutional, but so far it has declined to make the same finding with regard to partisan gerrymandering.

I first told you about this case back in July and then I reposted about it in October just before the Court heard oral arguments. As I mentioned in those posts, this case is – in my humble opinion – the most important case the Court will hear this term, and possibly the most important Supreme Court case in at least a decade.  So if you aren’t already familiar with it, I hope you’ll click over and read one of my previous posts about this case.

SCOTUS Accepts a Second Partisan Gerrymandering Case

And now here’s the update: last month, the Court decided to hear another partisan gerrymandering case, this one coming out of Maryland (Benisek v. Lamone).  This is quite newsworthy, because typically when the Supreme Court is asked to review a case that presents an issue similar to one the Court is already reviewing, the Court will put the second case on hold until it announces a decision in the case it is already looking at.  Then, once it reaches a decision in the initial case, it will send the second case back down to the lower court to be reconsidered.  But here, the Court has instead taken on a second similar case mid-term.

This has caused a lot of Supreme Court watchers to wonder “what’s up??” And many of them seem to think that what’s up might be something good for those of us hoping for a ruling against partisan gerrymandering.  Election law expert Rick Hasen described the development as “tantalizing.”  He believes there are a couple possibilities for why the Court may have taken on this second case.  The first is that there may be some technical issue with Gill (the Wisconsin case) that prevents the Court from deciding the case on the merits.

Though the Maryland case is very similar to Gill, there are certain significant factual differences that could eliminate any of the technical problems Gill might present.  So taking up this second case would give the Justices the opportunity to weigh in on the issue if they’re prevented from doing so in Gill for technical reasons. It seems unlikely the Court would have taken on this second case only to rule once again that they’re going to stay out of it.  (Though of course, we always have to remember the caveat this post started with).

A second possibility Hasen mentions (and that others legal experts have proposed as well) is that the Court may have taken the Maryland case as a way to provide partisan balance.  See, the Wisconsin case is about Republican gerrymanders, done to disadvantage Democrats (or conversely, to advantage Republicans).  This represents the majority of the gerrymandering in the country right now, as Republicans control the vast majority of state governments.   However, the Maryland case is about an instance of Democratic gerrymandering, done to disadvantage Republicans.

Could This Be About Justice Roberts?

During oral arguments in Gill (the Wisconsin case), Chief Justice Roberts specifically mentioned that his main apprehension with the Court weighing in on the case is that the public would view it as political and that would hurt their view of the Court:

If you’re the intelligent man on the street and the court issues a decision, and let’s say the Democrats win, and … that person will say, ‘Well, why did the Democrats win? … It must be because the Supreme Court preferred the Democrats over the Republicans.  And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the county.

And Justice Roberts’ concern with how the public views the Court did not just begin with this case.  He has expressed unease recently with the idea that partisan battles over confirming judicial nominees will affect how the public views the judges/Justices that emerge from those battles.  (One could argue that the public would be right in that view, but that’s a whole separate post).  And Roberts’ focus on protecting the image of the Court as an impartial arbiter goes back to his earliest years on the Court.  He has consistently seen it as part of his job to make sure that the Court’s integrity is maintained in the view of the American public.

So this second possibility raised by Hasen is especially intriguing.  Perhaps Justice Roberts is willing to allow the Court to weigh in on partisan gerrymandering if it can be done in a way that doesn’t make the Court itself appear partisan.  The Maryland case presents the Court with just that opportunity, if (and it’s a big if) they’re looking for it.

Or Is It About the Usual Suspect, Justice Kennedy??

And here’s one more interesting thing to note about these two cases: they actually base their challenges on different constitutional theories.  The Wisconsin plaintiffs argue (primarily) that the gerrymandering is an equal rights violation.  The Maryland plaintiffs argue that the gerrymandering is a violation of the First Amendment.  According to the legal experts, it’s possible that this difference may be another opening for the Court to step in and render a decision in favor of the Maryland plaintiffs.

Justice Kennedy (who everyone views as the swing vote on this issue) has previously suggested that he’d be open to a First Amendment argument in a case such as this – the argument being that in a gerrymandering scheme, the affected voter is being retaliated against because of his/her political views (gerrymandered voters are placed in certain districts based on which Party they support).  This is a simpler and more straightforward theory than the one being argued in the Wisconsin case, which relies on a complicated statistical test to determine at what point partisan gerrymandering becomes too partisan.

Or . . . We May Just Have To Wait & See

So, the bottom line is that there are several ways in which the addition of this Maryland gerrymandering case appears to make it more likely that the Court is willing to step in to the gerrymandering morass, where it has previously refused to do so.  However, as noted throughout this post, sometimes even the biggest bread crumbs lead us down the wrong path when it comes to predicting Supreme Court outcomes.  So while it’s fun to play Supreme Court detective, unfortunately on this – the most important of cases – when it comes to getting an answer, the only thing we can really do is wait.



*The Court doesn’t intentionally torture us by making us wait until the end of its term to announce decisions in its biggest cases.  It’s just that these are the decisions that tend to take the longest for them to negotiate and write the opinions on.  So almost every term turns out the same way, with decisions in the years biggest cases being announced on the last few days of the term.

**You may have seen in the news that the Supreme Court also agreed to take up a gerrymandering case out of Texas last week.  However, unlike the cases discussed above, the Texas case deals with racial gerrymandering.  The Court recently declined to take up an appeal out of Texas based on claims of partisan gerrymandering.  It is likely the Court is holding off on the latter case since it already has the two partisan gerrymandering cases discussed above.


2 thoughts on “Take a Gander at this Gerrymander

  1. Ettinger arlene January 17, 2018 / 10:42 am

    No ones crystal ball has been working


    • DC Deciphered January 17, 2018 / 10:47 am

      I like to think mine has been pretty good! If you look back at some of my early posts, you’ll be surprised


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