Monday, June 18, 2018


Joseph Fishkin

If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).

However, we should not be deceived by the apparent breadth of support for the disposition of the two cases this morning. There is only one Justice who clearly believes in the nonnonjusticiability of partisan gerrymandering, and he is the subject of endless (and not especially informed) retirement speculation. The surprising conclusion follows that Justice Kennedy still has a chance in June 2018 (the month is young!) to conclusively determine the future of partisan gerrymandering in the United States. Today, he led the court in a new round of creative efforts to hold it nonnonjusticiable. But on the last day of the term, or any time he likes, he could choose to retire. For him to do so while President Trump is in office, especially with the Senate in Republican hands, would be a terrible thing for the future of the United States for a variety of reasons I won’t enumerate. But anyway, to the extent that we assume that even Supreme Court justices intend the reasonably foreseeable consequences of their deeds, we can say that, if he retires now, Justice Kennedy would be affirmatively and firmly deciding, by so doing, to have the Court greenlight partisan gerrymandering, holding that challenges to it are nonjusticiable after all. Justice Kennedy’s hands would look perfectly clean; he would be safely retired and would not have to do the deed. But just as personnel is policy, in this case the fault lines on the Court are so clear that personnel is law. When Justice Kennedy wrote his last major decision-not-to-decide this issue in Veith in 2004, Justice Scalia characterized his vote as a “reluctant fifth vote for nonjusticiability.” I disagree with that characterization, but in light of this morning’s decisions I would characterize any decision by Justice Kennedy to retire this year (or next year, if the Senate remains in Republican hands) as a clear indication that ultimately, his preference is that the Court should hold that no partisan gerrymander is going to be struck down by a federal court, and that he would prefer to have this decided by his retirement instead of being decided by his vote.

Today’s cases of course leave open the possibility that a future Supreme Court will actually follow the lead of some lower courts in striking down a partisan gerrymander as unconstitutional. The Court’s ruling in Gill v. Whitford will somewhat complicate the evaluation of such claims in the future, focusing attention on exactly the place (individual districts) where the harm is the least clear. But, perhaps Justice Kagan’s concurrence for four Justices is correct, and all the Court is doing here is introducing an oddly formalistic little threshold requirement that will drop away once plaintiffs prove they satisfy it—or perhaps even as soon as the plaintiffs say “First Amendment” really loudly and clearly (see part II of her concurrence). Time will tell. For now, we’ve got nonnonjusticiability, the box is safely closed, and a retirement announcement is the only thing left this term that can open it.  If that announcement comes, it will alter the meaning of this morning’s decisions considerably.

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