Opponents of political gerrymandering had reason for optimism at the Supreme Court on Tuesday, with Justice Anthony M. Kennedy, the likely swing vote, appearing more in sync with liberal colleagues who seemed convinced that a legislative map can be so infected with political bias that it violates the Constitution. But it’s what Kennedy didn’t say that could determine whether the court, for the first time, strikes down a legislative map because of extreme partisan gerrymandering. While he has previously expressed concerns about the political mapmaking practice, he has yet to endorse a way of determining when gerrymandering is excessive, and Kennedy give no sign at oral arguments Tuesday that he had found one. In a case from Wisconsin that could reshape the way American elections are conducted, the Supreme Court heard from challengers that it was the “only institution in the United States” that could prevent a coming wave of extreme partisan gerrymandering that would distort the basic structure of democracy.
“Politicians are never going to fix gerrymandering,” said Paul M. Smith, representing Democratic voters who challenged a 2011 redistricting plan drawn by Wisconsin’s ruling Republicans. “They like gerrymandering.”
Even conservative justices skeptical of Smith’s argument seemed to agree that it was unsavory for members of the party in power to draw legislative districts to protect themselves and their own, and make it hard for opponents to ever gain power.