Extreme gerrymandering, the process by which politicians draw congressional and legislative district lines to thwart the will of the people, has “debased and dishonored our democracy.”
So writes Supreme Court Justice Elena Kagan in what history will record as one of the finest statements from the Court in the modern era. Responding to cases that focused the Court’s attention on startling examples of how the map-drawing process is abused to tip the partisan balance, Kagan recognizes a clear “constitutional violation,” and writes:
The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In doing so, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
There was only one problem with Kagan’s stirring defense of democracy. It came in the form of a dissent from a decision issued Thursday by the Court majority, which abandoned democracy to the wolves of electoral privilege, legislative chicanery, and political high finance. Chief Justice John Roberts, writing for himself and four conservative colleagues, acknowledged that “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’…does not mean that the solution lies with the federal judiciary.”
Roberts concluded that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Kagan concluded that “In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”
Kagan was right. But, when it comes to fundamental questions of whether the judicial branch will sustain American democracy, the answer from the Roberts Court is invariably “no.” That does not mean that the Court gets every issue wrong; Roberts will occasionally side with the Court’s liberal justices to block flat-out madness, as he did with Thursday’s determination that the Trump administration had failed to provide an adequate argument for adding a citizenship question to 2020 Census forms.
But consider the record of the Roberts Court on cases that define the framework and functionality of our electoral processes:
- With the 2010 Citizens United v. Federal Election Commission decision, the Roberts Court effectively gutted campaign finance protections, clearing the way for corporate interests to flood the political process with money. In so doing, the Court made it easier for the wealthy and the powerful to frame the debate with so-called “independent expenditures” and to tip the balance of contests that have determined control of the US Senate and key governorships.
- With the 2013 Shelby County v. Holder decision, the Roberts Court gutted key sections of the 1965 Voting Rights Act. In so doing, the Court made it harder to defend the democratic rights of African American, Latinx, and other minority voters at precisely the time when Republican legislatures across the country have been undermining protections and erecting barriers.
- With this week’s decisions on the cases of Rucho v. Common Cause (from North Carolina) and Lamone v. Benisek (from Maryland), the Court has rejected a call for judicial intervention to address corruption of the political process by legislative charlatans at the state and local levels. “Today’s ruling by the Supreme Court’s conservative justices undermines democratic participation for millions of Americans in Ohio and across the entire United States,” explained Congresswoman Marcy Kaptur, an Ohio Democrat who has been a target of extreme gerrymandering by that state’s Republican legislator and governor. “They had a rare opportunity to strengthen, if not save, fair representation in our democracy and they categorically failed.”
The fight against gerrymandering will go on. “While we are disappointed that North Carolina voters will continue to vote in districts that were shown at trial to be severely biased, the fight is far from over,” explains Paul Smith, vice president at the Campaign Legal Center. “We must redouble our efforts outside the courtroom to put the voices of voters first. Independent citizen-led commissions, such as those passed in Colorado, Michigan, Missouri, and Utah in 2018, have been highly successful in ensuring that district maps fairly represent the population. Reformers from other states should follow this lead and continue to fight back against gerrymandering.” Common Cause president Karen Hobert Flynn says,“Without recourse to the Supreme Court, the American people must continue to take the battle to the state courts, to the polls, and to the streets, to make their voices heard and to end partisan gerrymandering once and for all.”
Congress and state legislatures still have the power to get things right. As the Brennan Center for Justice notes, HR 1, the For the People Act that has been backed by the US House, “would curb extreme partisan gerrymandering by ensuring that states draw congressional districts using independent redistricting commissions whose members represent diverse communities across the state, by establishing fair redistricting criteria, and by mandating greater transparency for the redistricting process.”
Unfortunately, the measure in being blocked in the Senate by majority leader Mitch McConnell and the same hyper-partisan Republicans who mangled the nomination process in 2016 to assure that Roberts could maintain an antidemocratic majority. And that’s the problem. When politicians thwart popular and necessary democratic reforms, they preserve their power to thwart popular and democratic reforms. This is precisely where the courts should step in as defenders of democracy—to, in Kagan’s words, address “worst-of-the-worst cases of democratic subversion” that are “causing blatant constitutional harms.”
Unfortunately, the Roberts Court has made itself the champion of these worst-of-the-worst cases of democratic subversion—not just with this decision, but with antidemocratic decision after antidemocratic decision after antidemocratic decision.