You’re reading Major Questions, Jesse Wegman’s newsletter on the Supreme Court — click here to receive it in your inbox twice a month.
Last Tuesday, Virginia became the latest state to join the partisan gerrymandering death spiral. By a narrow margin, the state’s voters opted to give its Democratic-majority legislature the power to redraw congressional districts in such a biased way that Republicans will only be assured of 1 seat in the state’s 11-member delegation, even though in the last election, Republican candidates won more than 47 percent of the statewide vote.
In taking this step, Virginia is following a growing wave of red and blue states across the country that are passing or trying to pass blatantly partisan maps, including Texas, Missouri, Ohio, California, and Florida. The standard take has been that Virginia’s Democrats played “hardball,” that they fought fire with fire. But doing so meant effectively disenfranchising hundreds of thousands of their own state’s Republican voters in the process — just as Republican legislators have done to millions of Democratic voters in multiple other states.
If you are thinking, Hey, this is all extremely unfair!, you would be right. In America, voters are supposed to pick their representatives, not the other way around. One might even say it’s “incompatible with democratic principles,” the words Chief Justice John Roberts used in a 2019 case to describe this age-old practice.
Surely the chief justice harnessed the Court’s unique and awesome power to outlaw such anti-democratic behavior? If only. Roberts, along with four Republican-appointed justices, stared down one of the most egregiously partisan gerrymanders in history and ruled that . . . the Court could do nothing about it. In short, our partisan-gerrymandering nightmare is getting worse by the day, and it’s the Supreme Court’s fault.
In that 2019 case, Rucho v. Common Cause, North Carolina’s Republican-majority legislature had drawn a congressional map so skewed that it ensured Republicans would win 10 of the state’s 13 seats in Congress, even though Republican House candidates won only a bare majority of the statewide vote. At least they could claim a majority; in 2012, Democratic House candidates won more than 1 million more votes nationwide than Republicans, and yet thanks to partisan gerrymanders, Republicans ended up with 33 more seats in the House.
Despite such glaring examples, which the 5–4 majority in Rucho agreed “seem unjust,” Roberts said the Court’s hands were tied because the Constitution offers no clear, discernible test to measure whether a given redistricting map is fair. Partisan gerrymandering presented a “political question,” he wrote, that was beyond the reach of the federal courts.
This explanation was laughable at the time; now it’s just tragic. As Justice Elena Kagan wrote in one of my favorite dissents of the 21st century, “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
As Kagan went on to explain, it is not at all beyond their capabilities. “What it says can’t be done has been done,” she wrote, pointing to the clear and workable tests that the lower courts in the North Carolina case had applied in finding that the state’s Republican-skewed maps had violated the Equal Protection Clause.
Indeed, the notion that the Court is somehow unable to apply a test that isn’t readily found in the Constitution’s text is absurd. “What the justices do for a living is to make up tests that are not in the Constitution,” wrote Louis Michael Seidman, a law professor at Georgetown, pointing to, among others, the “strict scrutiny” test, the “compelling state interest test,” and the “undue burden” test. “Are these tests perfect? Of course not. If the Court insisted on perfect tests, it would never adjudicate constitutional claims.”
Seven years on, Rucho is one of those cases I can’t get over. It represents an inexcusable abdication of arguably the Court’s most important job, which is to protect the democratic rights of those who cannot rely on that protection through the political process. Instead, the Roberts Court has done the opposite, gutting federal laws designed to protect voting rights and looking the other way at precisely the moment when its power is most clearly called for.
Until relatively recently, the Court agreed that it should probably do something about the worst partisan gerrymanders, but that was while Justice Anthony Kennedy, who had said as much in a 2004 opinion, was still on the bench. As soon as he retired (after switching his position and joining the Rucho majority), a right-wing supermajority took charge and the current laissez-faire attitude toward partisan gerrymandering kicked in.
The court’s disingenuous refusal to act in Rucho is all the more infuriating because the road map to the opposite outcome was sitting right there: in the Court’s “one person, one vote” cases.
In the early 1960s, Americans were becoming aware of how many congressional districts, especially in the South, had been drawn specifically to enhance the voting power of rural (and whiter) conservatives at the expense of urban and suburban (and racially diverse) voters. This was achieved by drawing districts with wildly different numbers of people. A rural district of 10,000 could have the same voting power as an urban district with many times more people — known as “malapportionment.” In Baker v. Carr, a 1962 ruling written by Justice William J. Brennan Jr. (our namesake for good reason), the Court rejected arguments that malapportionment involved a “political question,” holding 6–2 that it had the power to decide whether districts might be so unfairly drawn that they violate the Equal Protection Clause.
Over the next few years, the Court in a series of rulings established the “one person, one vote” principle, requiring that all congressional and state legislative districts be comprised of essentially equal numbers of people. As the Court explained in 1964, the Equal Protection Clause “guarantees the opportunity for equal participation by all voters in the election,” and that opportunity “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”
What is partisan gerrymandering if not a “debasement or dilution of the weight of a citizen’s vote”?
In short, the 1960s Court did what the Supreme Court is supposed to do, and American democracy has been healthier as a result. Fifty years later, John Roberts and his Republican-appointed colleagues have been doing the opposite, dragging us down into an endless political war that is only going to get worse. What began as extreme partisan gerrymanders has now expanded into mid-decade gerrymanders, as each side races to the bottom.
