Today SCOTUS handed down a decision on the two gerrymandering cases of Wisconsin and Maryland by … avoiding the issue, as CNN notes:
The Supreme Court on Monday sidestepped two major cases concerning partisan gerrymandering, allowing controversial district maps to stand and be used in this fall’s midterm elections.
The 9-0 ruling authored by Chief Justice John Roberts in a Wisconsin case is a blow to Democrats who argued the Republican-drawn maps prevented fair and effective representation by diluting voters’ influence and penalizing voters based on their political beliefs.
The Wisconsin case was returned to the lower court, while the Maryland case was turned down because no irreparable harm was shown.
Eugene Volokh of The Volokh Conspiracy:
Of course, some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible. And perhaps these were indeed the right answers in these cases. But I just wanted to note that at least so far, a lot of the expected big bangs have fizzled (though of course some of the most-awaited high-profile cases, such as the “travel ban” case and the union agency fee case, still remain to be announced later this week or next).
And recall the Masterpiece Cakeshop decision, another case of a big principle and a fizzle of a decision. I wonder if SCOTUS would really rather not become a football in the current political wars. This may be Roberts, conscious of legacy, steering the court down roads with guardrails, rather than forest paths where bears may savage the court’s reputation.
We may see similarly narrow decisions in the near future.
David French on National Review has a mix of good and bad points:
Benisek [the Maryland case] is largely meaningless. Gill [the Wisconsin case], however, is of some consequence. The case — while a “punt” on the merits — does have a clear purpose. It demonstrates once again that there’s no easy judicial path through what is (at its heart) a tangled political morass. When districting is delegated to the political branches of government, it will be — hold on to your hats — thoroughly political. States can choose different ways to district, but when a state chooses the political path, the Supreme Court’s default position should be to defer, absent clear and unequivocal constitutional violations. And, by the way, there is no constitutional right to a legislative composition that matches each party’s share of the vote.
An interesting remark, given fair representation is one of the pillars of our country. It’s probably worth a smack upside the head. However, this is a more cogent, practical point:
Moreover, while there is no doubt packing and cracking in any political districting process, we can’t forget that the American people are in the midst of their own, voluntary gerrymander. The number of “landslide counties” (where one presidential candidate wins by 20 points or more) keeps increasing. People are packing themselves, and this “Big Sort” means that no judicial decision can deliver the sweeping solutions that many activists crave.
So long as we use a geographical system for representation, which I think has more of a basis in political history than in political theory, and the population remains capable of changing its mind, it’s a fair point that looking to the judicial system to “fix” gerrymandering may be a fool’s errand.
