//  7/2/19  //  Commentary

The ink is barely dry on Thursday’s decision in Rucho v. Common Cause, but the case has already gone down as one of the most significant of the Supreme Court’s term, if not of the decade. In Rucho, the Court answered a question that had persisted for decades: how should federal courts resolve claims of unconstitutional partisan gerrymandering? The Court said, simply, “they shouldn’t,” closing the door to that kind of claim. No matter how extreme the violation, or how overwhelming the evidence, partisan gerrymandering claims are now out of bounds.

Rucho may at first come across as something of a paradox. If any one justification can be said to guide the majority’s opinion, it is “political neutrality.” The majority’s opinion highlights neutrality right out of the gate when it states the demand that the Court eventually decides cannot be met: “Any standard for resolving” claims of partisan gerrymandering must be “clear, manageable, and politically neutral.” The words “neutral” or “neutrality” occur nearly two dozen times between the majority opinion and the dissent. And yet the decision is being greeted by many as extremely political, with the New York Times describing the outcome as “hand[ing] Republicans a key victory,” and the Washington Monthly saying that the opinion provides confirmation for those “inclined to view the Supreme Court chief justice as a loyal Republican operative.”

This tension reflects the limits of the idea of neutrality that the Court’s majority invoked throughout its opinion in Rucho. In the context of partisan gerrymandering, there is an obvious appeal to a certain vision of neutrality that you might call “case-by-case” neutrality. In other words, if federal courts could hear partisan gerrymandering claims, it should be obvious that the outcome of any particular case should not turn on which political party is accused of gerrymandering. This idea of neutrality embodies the old quip that “what’s sauce for the goose is sauce for the gander.” Whatever rules structure our political system, they should apply to Republicans and Democrats alike. This is the kind of political neutrality that the majority opinion says cannot be guaranteed by any doctrinal test, therefore making it impermissible for “judges to take the extraordinary step of reallocating power and influence between political parties.”

But this invocation of “case-by-case” neutrality by the majority distracts from the fact that Rucho is not a decision about individual cases—it’s a decision about our governmental system as a whole. The Court is deciding a dispute about the proper role of the judiciary’s power with respect to the other branches. In this kind of suit, which involves the balance of powers, there is no “neutral” stance between the various institutions involved—any power assumed by the judiciary comes at the expense of other government officials, and any power abdicated by the judiciary expands those same officials’ authority. What’s more, because the federal courts’ own institutional interests are seriously in play, the judiciary in a way is sitting as a judge in its own case—which may cause it to, for instance, overweight its own interest in avoiding difficult or controversial cases at the expense of substantive justice. In other words, there is no “neutral” arbiter here, nor is there a “neutral” baseline. There is only power that must be divided somehow, with significant political repercussions no matter which way the pie is sliced.

As a result, any answer to the question of how to slice that pie must ultimately rest on a ground other than neutrality. And that is why the majority opinion is essentially unsatisfying. To adapt the Chief Justice’s famous metaphor, Rucho is like an umpire who, saying the strike zone cannot be administered fairly, decides to let whichever team is winning call the balls and strikes. The quest for fairness surely matters, and a perfect solution may be elusive. But the Court’s abdication leaves in place a system that may be worse than whatever imperfect solution the Court would devise. It is this comparison—between the Court’s action and its inaction—that matters, not just the comparison between the flawed fixes the Court can imagine and a hypothetical neutral ideal.

The dissent understands this. Justice Kagan foregrounds the “grievous harm to democratic governance and flagrant infringements on individuals’ rights” that the Court’s decision lets stand. The dissent also articulates a robust vision for the role of the federal courts, both by discussing the courts’ history of enforcing structural political protections and describing how the courts’ independence makes them better for this role than elected officials. The majority, in contrast, spends little time on these historical and structural arguments. The majority opinion briefly invokes a few statements about the judicial role from political-question-doctrine case law, but does not really engage with the dissent’s response that key institutional traits of the federal courts, such as independence, counsel in favor of hearing these claims, not against.

Of course, the result displays no problems from the perspective of “case-by-case” neutrality: there won’t be any cases. And, on the national scale, it will affect both the major parties, as demonstrated by the Court’s selection of cases challenging both Republican and Democratic districting plans. There are reasons to doubt that Rucho will actually succeed at extricating the federal courts from the political fray of gerrymandering—as Rick Hasen has pointed out, it will be hard to extricate nonjusticiable partisan gerrymandering claims from justiciable racial gerrymandering claims. But even if it does achieve this goal, Rucho shows that the Court cannot avoid “reallocating power and influence between political parties,” because the choice of inaction has serious consequences for political power as well. For decades, the Court has held open the possibility that extreme partisan gerrymandering could go too far, and would be struck down if it did. The Court has now removed that possibility. For Republicans in Maryland, Democrats in North Carolina, and others throughout the country, that creates a serious power vacuum that will be filled by whichever party is in charge when it’s time to make the maps. The Court may get to stay out of directly adjudicating those battles in the future. But its ruling will influence who will be able to get and maintain political power across the country for decades to come.


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