The Supreme Court’s decision on Friday to take up partisan-gerrymandering cases from North Carolina and Maryland brought to mind a saying attributed to Judy Garland: Behind every cloud is another cloud. The now firmly conservative Court likely took the cases not to announce that such activities violate the Constitution, but to reverse the lower courts that said they do. Down the road, the Court might do much more damage, including by preventing states from using independent commissions to draw congressional districts. For years, the Supreme Court has ducked the question of partisan redistricting, failing to provide clear guidance on its constitutionality. Until he left the Court this summer, Justice Anthony Kennedy was the key swing vote on this issue. In 2004, he disagreed with conservatives that such cases present “political questions,” which courts cannot hear given the lack of “judicially manageable standards.” And he disagreed with liberals that any as-yet-proposed standards adequately separated permissible from impermissible consideration of partisan information in drawing district lines. But he suggested that the First Amendment’s right of association could serve as the foundation of a ruling against gerrymandering.
Justice Elena Kagan took Kennedy up on that suggestion in a case the Court (sort of) decided last term, Gill v. Whitford. Plaintiffs argued that Wisconsin Republicans had drawn district lines to give them asymmetrical advantage over Democrats in state legislative elections. The Court, in an opinion by Chief Justice John Roberts, unanimously dismissed the case on standing grounds, sending it back to the lower court for further proceedings. But Kagan, in a concurrence joined by three other liberals, set forth a First Amendment, associational-injury theory of partisan gerrymandering that was designed to appeal to Kennedy. Kennedy did not bite and soon retired from the Court.
Although Kennedy’s replacement, Justice Brett Kavanaugh, did not decide any gerrymandering cases as a lower-court judge, his general disposition lines him up with the other conservatives on the Court who believe that the judiciary has no business policing gerrymandering. In the Maryland and North Carolina cases the Court just took, both lower courts were willing to act as the police. Because of a procedural quirk, a decision by the Supreme Court not to hear these cases would have counted as an acknowledgment that the lower courts got the question right. So there’s every reason to expect 5–4 reversals unless a conservative justice or two goes rogue, or gets cold feet.