With the Supreme Court taking a new look on Tuesday at a constitutional puzzle it could not solve 13 years ago, Justice Anthony M. Kennedy gave a fairly strong hint that he may now have the answer.
The puzzle has been easier to describe than to solve: when is partisan gerrymandering unconstitutional? Or, in other words: when does a state legislature go too far in drawing election districts to assure more victories at the polls for one party’s candidates?
Kennedy had said before, in an opinion he wrote in 2004, that the answer is more likely to be found in the Constitution’s First Amendment, and the right of voters to work together with others whose political views are compatible, but at that time he came no closer than that.
When the court on Tuesday took up the high-profile case of Gill v. Whitford, the focus was already on what Kennedy might say because of his prior views on the issue. And it took very little of time in the new hearing to emphasize anew his importance: it was quite clear that his eight colleagues were probably split 4-to-4 on whether to even look for a solution to partisan manipulation of election district lines.
Kennedy repeated again that he thought the focus should be on the First Amendment, but this time he went further. If a state constitution or a state law ordered the legislature to make its “overriding concern” the achievement of maximum support for one party’s candidates, he asked, would that be enough to violate the First Amendment?
Translated, what he seemed to be driving at was how high a priority a particular state legislature assigned to its partisan ambition, and if that were shown to have been its top goal, that could be enough to show unconstitutional intent to harm disfavored voters of the other party.
A finding of an “overriding” partisan goal might relieve voters of the disfavored party of the burden of proving that they were, in fact, harmed in their political pursuits. Such a finding might mean that the burden shifted to the legislature to show that it actually had something else in mind beyond punishing the political opposition.
If that is what Kennedy was thinking, it has a rather familiar ring: that is exactly the formula the court has long used to judge when legislatures make too much use of race when they undertake a new round of electoral redistricting. If race is proved to be the “predominant purpose,” then the legislature has to show that what it did was justified for non-racial reasons. That is a well-tested approach in the racial context.
As the hearing unfolded on Tuesday, the hint that Kennedy seemed to be giving appeared to provide some reassurance to some of the conservative Justices, who suggested that it might be too politically risky for the court’s reputation for it to go too deeply into monitoring political maneuvering in redistricting, leaving the impression that the court, too, was playing partisan games, or who wondered if it might be too early to rely on new and little-tested social science formulas on how to measure partisanship.
By implying that the main inquiry for courts would be a search for an “overriding concern” to maximize partisan advantage, Kennedy seemed to be suggesting that only a few redistricting maps might fail to pass that test, so the courts would not need to judge every new map every decade. In other words, his approach would doom only the worst-case partisan manipulation. And he also seemed to be hinting that the court need not fashion a whole new constitutional standard for partisanship in the inherently-political realm of redistricting, but could borrow from the constitutional realm of racial gerrymandering. Further, he appeared to be thinking out loud about the ways to write a ruling that could easily be understood by the general public, rather than constructing a formula based on what two of the Justices derided as the “gobbledegook” of mathematical equations applied awkwardly to political outcomes.
From the overall hearing, it was plain that, unless the court can find some way to limit the role of the courts in second-guessing political actors for acting politically, there would be a strong urge among some of the Justices to continue to stay out of the controversy altogether.
Lawyers arguing the case for the state of Wisconsin and for its Republican legislative leaders contended vigorously for the court to take a pass, saying there is still no workable formula for courts to use in judging partisan ambition. That was the safe thing to argue on Tuesday, and it did appear to have some support on the bench.
But the lawyer arguing for the challengers to the Wisconsin maps argued, just as vigorously, that partisan polarization had grown much worse in America, that only the court could save the country from that growing even worse, and that a failure to cure the problem would actually amount to a threat to democracy itself by discouraging voters from even going to the polls. That was the daring thing to argue on Tuesday, and it obviously impressed some of the Justices.
The outcome seems to depend very heavily upon which of those two approaches would most challenge Justice Kennedy, who has shown for years his caution about leaping into the partisan gerrymandering fray, but who also has shown for years that he can be enlisted in bold new constitutional interpretation.