Say what you will about Justice Samuel Alito, but the man always thinks ahead. On Monday, Alito dissented in Cooper v. Harris, the landmark 5–3 ruling that united Justice Clarence Thomas and the Supreme Court’s liberals to strike down North Carolina’s racial gerrymander. Frustrated by the progressive result, Alito penned a 34-page broadside lambasting his colleagues for accusing the state of race-based redistricting. North Carolina, Alito insisted, had gerrymandered along partisan lines, not racial ones, in an effort to disadvantage Democrats, not blacks. And partisan gerrymandering, Alito reminded us, does not violate the Constitution.
In fact, the constitutionality of partisan gerrymandering is a matter of extensive debate—and the Supreme Court will almost certainly decide its fate next term in a blockbuster case called Gill v. Whitford. Alito, it seems, is already gearing up for Whitford. His Harris dissent is peppered with warnings about the hazards of judicial intervention into political redistricting disputes. Alarmingly for voting rights advocates, Justice Anthony Kennedy joined the opinion in full, lodging no protest against the passages framing partisan gerrymandering as constitutionally permissible politics as usual. Given that Thomas has no issue with partisan (as opposed to racial) gerrymandering, the plaintiffs will likely need Kennedy’s support to pull off a victory in Whitford. But his vote on Monday suggests the justice might not be ready to take down partisan gerrymandering.