For 14 years, as partisan gerrymanders across the country grew more extreme, Justice Anthony M. Kennedy came to symbolize hopes that the Supreme Court would eventually rein them in. His retirement this week did not merely dampen those hopes. Experts said it also presented a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political means. Justice Kennedy was widely seen as the swing vote on gerrymandering in a court divided between liberals, who see the practice as unconstitutional, and conservatives, who regard it as a political problem, not a legal one. Indeed, he single-handedly preserved it as a judicial question, in a 2004 case involving Pennsylvania’s Legislature, when he declined to join four other justices who declared that it is impossible to determine when a political map becomes unacceptably partisan. “That no such standard has emerged in this case,” he wrote then, “should not be taken to prove that none will emerge in the future.”
Justice Kennedy had three opportunities in the court’s last term to join liberals in setting such a standard — in cases involving Maryland, North Carolina and Wisconsin — but passed on each. With his departure, lawyers and legal scholars say, Chief Justice John Roberts becomes the most likely justice to cast a fifth vote against partisan gerrymanders.
But that likelihood, some said, is quite small. In hearing gerrymander challenges during the last term, Justice Roberts worried aloud about enmeshing the court in political matters.