Hearing oral arguments Tuesday on Wisconsin’s partisan gerrymandering case, members of the U.S. Supreme Court took on questions ranging from which voters should have legal standing to whether the justices themselves should get involved at all.
Chief Justice John Roberts appeared to come down strongly on the side for the nation’s highest court to take a pass.
“If the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country,” Roberts said, describing politics as a “very important driving force” and questioning why a racial gerrymandering challenge should have more limits than one based on partisanship. “And every one of them will come down here for a decision on the merits. These cases are not within our discretionary jurisdiction.”
He warned the court will be placed in a position of declaring winners in partisan races.
“So, it’s going to be a problem here across the board,” Roberts said. “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 country.”
Justices Samuel Alito and Neil Gorsuch hit similar themes. Alito even questioned whether the Wisconsin case represents the right time for the type of judicial intervention sought by opponents of Wisconsin’s GOP-drawn map of state legislative districts. Critics see the district lines as so extremely partisan that it gave the majority party an unfair advantage at the polls.
“Gerrymandering is distasteful,” he conceded. “But if we are going to impose a standard on the courts, it has to be something that is manageable.”
Alito also raised the issue of standing. In one example, he asked whether a voter in Milwaukee should be able to raise a legal challenge in a district located in another part of the state.
Gorsuch questioned the criteria a state would need to avoid having every district and every election challenged in court. At one point, he compared the challenge to preparing a steak rub.
“And so what’s this court supposed to do, a pinch of this, a pinch of that?” asked Gorsuch, who also wondered how many election cycles and how much data would be needed to decide to move forward with a standard for the courts. He suggested the lower court had not used a “real set of criteria,” and instead leaned on a standard of a “partisan symmetry problem.”
Several other members of the court appeared to come down on the other side.
“The world of technology has changed a great deal,” Justice Elena Kagan said. “When legislatures think about drawing these maps, they’re not only thinking about the next election, not always, but often about the election after that and the election after than and the election after that.”
Kagan described the level of sophistication used in such efforts to ensure certain partisan results.
“What I’m suggesting is that this is not kind of hypothetical airy fairy, we guess and then we guess again,” she said. “I mean this is pretty scientific by this point.”
Justice Sonia Sotomayor picked up a similar theme in her questions and comments.
“They created three or four more maps. They weren’t partisan enough,” Sotomayor said.
After maybe 20 different attempts, she said, a final map was achieved. Finally, she said, the most partisan map was achieved.
“And it worked,” Sotomayor said. “It worked better than they even expected.”
Justice Ruth Bader Ginsburg commented on what she thought was at stake in the effort in Wisconsin case.
“The precious right to vote,” Ginsburg said.
She asked, if a legislature can be stacked a certain way, what is the incentive for a voter to exercise his right at the polls?
Justice Anthony Kennedy, often in recent years considered the crucial swing vote on the court, once again could play that role.
That’s because Justice Clarence Thomas is expected to stick with the other conservative members of the court, and Justice Stephen Breyer is expected to side with the other more liberal justices.
Kennedy, who was the first justice to jump in with a question, appeared to offer comments and questions that possibly could give comfort to both sides. A key example of that could be on the issue of who should have legal standing when it came to a statewide challenge on a claim of partisan gerrymandering
“I think it is true that there is no case that directly helps respondents very strongly on this issue,” he said.
But he also asked whether that could be viewed differently if the case turned on the First Amendment rather than an equal protection argument.
Read the transcript of the oral arguments:
See more coverage in Tuesday’s PM Update: