Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Justices of the Supreme Court are nine of the most powerful people on the face of the earth. Yet it seems to be their lot to be forever anxious that exercising their power might undermine it. Some Justices seem to fear—at least, in certain select sorts of cases, and more on that below—that they are still the weak third branch from 1789, hobbled by the lack of purse or sword. But the Court has since obtained a thing arguably at least as good: the widespread belief among Americans—an unusually legalistic and litigious bunch—that the Supreme Court stands for justice, fairness, the Constitution, and the rule of law. This widespread belief is precious and consequential. But, perhaps the public is fickle, or so the worry goes; perhaps this belief is something the Court could squander by straying out of its lane into matters that are too “political.” And so, on a day when the Court sits at a historic inflection point, with a big decision to make about whether to police partisan gerrymandering as a justiciable violation of the Constitution, some Justices are worried. As one Justice put it, “continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication”; this ought to lead us to view “with deep concern” a judicial intervention in how states draw their district lines.
That quote is actually from 1962. Justice Harlan was dissenting from the Court’s decision in Baker v. Carr. The Court’s dramatic intervention in that case into state redistricting practices would grow into what we now call the one person one vote doctrine. Just as critics at the time feared, the new doctrine swept across the national landscape, invalidating the districting maps in nearly every jurisdiction in the United States. It is not an overstatement to say that one person one vote revised and revitalized the entire American political order, and executed a dramatic power shift along a highly salient political axis: the divide between the rural hinterland and the growing urban centers. (At that time, the major parties, especially the Democrats, were ideologically incoherent umbrella coalitions, and the South didn’t even have a second party. Thus, the rural-urban axis along which the Court’s intervention was most deeply felt was arguably a more important and salient axis of political disagreement than partisanship itself.) One person one vote was a profoundly politically charged intervention. But it turned out Justices Frankfurter and Harlan had it exactly backward. The authority of the Court emerged not diminished, but augmented. One person one vote turned out to be an intuitive and popular form of democracy-reinforcing judicial review that bolstered the Court’s authority and further intertwined that authority with the general American reverence for law and the Constitution.
Still, perhaps there is something different and special about partisanship. Perhaps it is especially dangerous for the Court to intervene directly in a high-profile partisan fight, with control of the government at stake. As one Justice put it, the appearance of a Court split along partisan lines, voting “in a highly politicized manner” in a case that favors one party over the other in an extremely high-stakes conflict, “runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We . . . risk a self-inflicted wound – a wound that may harm not just the Court, but the Nation.”
That quote is from 2000. Justice Breyer was dissenting in Bush v. Gore. His articulation of the worry is compelling. At the time, and for years afterward, it seemed to me entirely plausible. And yet—much as it pains me to say this—it turns out Justice Breyer, too, had it exactly wrong. The Supreme Court’s “highly politicized,” ticket-good-for-one-ride-only intervention to stop the clock on an election recount and thereby decide a Presidential race in favor of the Republican candidate over the Democratic candidate left the public’s confidence in the Court not diminished but augmented.
Today at the oral argument in Gill v. Whitford, Chief Justice Roberts resurrected the worries articulated so well by Justices Frankfurter and Harlan—and in a different and even more explicitly partisan context by his colleague Justice Breyer. If the Court intervenes in the widespread and increasingly sophisticated practice of partisan gerrymandering, Chief Justice Roberts said, “the intelligent man on the street” is going to hear about all this social science evidence and “say that’s a bunch of baloney. 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 country.” (oral argument transcript, p.37-38).
I have a simple and realist answer for Chief Justice Roberts and it is this. That thing you are worried about, where the Court’s intervention is perceived as partisan and thereby erodes respect for the Court? It is not going to happen.
I’ll add one caveat. Perhaps you will someday find a way to make this happen. Perhaps you will stray so far from American public opinion on some major issue or other that our national political debate is re-oriented, so that at least one party is effectively running, in significant part, against the Court. This happened in the 1930s; it arguably happened in the backlash against court-ordered desegregation in the 1970s. It could happen again. But is policing “outlier” cases of partisan gerrymandering today going to cause this? Are future politicians going to run against the Court on the grounds that the Court is going too far in trying to police partisan gerrymanders and give the people some say in who governs them? No.
Indeed, as Paul Smith, responding to the Chief Justice’s question at today’s oral argument, noted, if the Court does not intervene in the case, “it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time.” (p.39). Smith didn’t get to spell out the full argument, so I’ll try. The Court does not stand completely alone, separate and apart from the rest of the political system, when it comes to the faith of the American public in democracy and the rule of law. Extreme partisan gerrymandering is one important source (there are others) of deep dysfunction in our political system and deep cynicism about it. If that cynicism deepens, the Court is not immune.
I write this blog post with a certain ambivalence. It doesn’t seem to me an unadulterated good that the Court has become so closely identified with fairness, justice, the Constitution, and the rule of law. There are certainly a lot of good things about this set of developments. But it also seems to me to deaden our constitutional politics by making people too deferential to the Court. I’ll write more about that some other time. On the other hand, I am very confident that no intervention the Court could make in Gill v. Whitford is going to undermine public confidence in the Court. More likely, non-intervention could undermine public confidence, over time, not specifically in the Court, but in the entire political order. The Court’s own place in that order—as the great neutral arbiter, policing the boundaries of democracy and the limits of laws—is, for better and worse, secure. The Chief who in his confirmation hearings famously and successfully reduced this point to a folksy metaphor—the court as umpire, calling balls and strikes—should probably know.
Finally, I think it is worth asking, if you are going to worry that the Court will undermine its own power by exercising that power in a highly politically charged context, why worry about it in this case, of all cases? Why not in Citizens United, where the Court intervened in a way that outraged half the American public, shredding restrictions on campaign speech in a way that favors deep-pocketed political actors over all others? Why not in Shelby County, where the Court intervened in the rules of the democratic game in a way that had enormous and immediate political consequences? Why not, above all, in Bush v. Gore?
In the end, the best arguments that the Court should declare partisan gerrymandering nonjusticiable are the same arguments that were advanced in favor of declaring one-person-one-vote cases nonjusticiable. These arguments are not wrong in any a priori sense. I can well imagine an alternative political universe in which a prickly American public would lose confidence in the Court for engaging in vigorous, democracy-reinforcing judicial review, because it all seems too “political.” But in our political universe—just as it was in pre-1962 gerrymandered America, with its locked-up rural strangleholds on power—the most damaging thing the Court can do now is to do nothing. An intelligent person on the street would react to a do-nothing decision, turning as it would on a bunch of doctrinal “gobbledygook” about justiciability and the political question doctrine and what have you, by saying, like the Chief's imaginary man on the street: “What a bunch of baloney. The Court is refusing to fix this problem even though they're the only ones who can fix this problem. I guess they are part of the problem. Our system is completely screwed up!” And unfortunately, that intelligent person, unlike many other intelligent people quoted or cited in this blog post, would actually be right.