The retirement of Justice Anthony Kennedy and his replacement with Justice Brett Kavanaugh will likely shape the doctrine of the United States Supreme Court in significant ways for decades to come. The rejection of challenges to partisan gerrymandering in Rucho v. Common Cause offered an early example of the impact of this transformation.

Under the United States Constitution, the states determine district lines for elections of representatives both to state legislatures and to the United States House of Representatives. State legislators have sometimes drawn the districts to maximize partisan advantage. For example, the Republican majority in the North Carolina legislature drew districts that in 2016 resulted in Republican candidates winning 10 of 13 congressional seats, with only 53% of the statewide vote.

This process of gerrymandering has a long history. The term comes from a partisan districting plan approved in 1812 by Elbridge Gerry, the governor of Massachusetts. However, big data and modern technology have made gerrymanders increasingly precise and effective. As Justice Elena Kagan commented in her dissent, “These are not your grandfather’s—let alone the Framers’—gerrymanders.”

The Supreme Court has grappled with the issue partisan gerrymanders for some time. Justices have clearly been uneasy with the practice, but have struggled to articulate a manageable standard for determining when a gerrymander becomes unconstitutional. In a 2004 case, Vieth v. Jubelirer, Justice Kennedy refused to endorse the idea that federal courts have no role to play, but he also declined to embrace any particular test.

Since Vieth lower courts have developed various standards for assessing the constitutionality of gerrymanders. Applying those tests, courts struck down the North Carolina gerrymander and a Democratic gerrymander from Maryland. The appeals from those cases gave the court a chance to revisit the issue. 

With the replacement of Justice Kennedy by Justice Kavanaugh, the newly constituted five-justice majority ruled that claims of partisan gerrymandering present political rather than legal questions and lie outside the jurisdiction of the federal courts. Writing for the majority, Chief Justice John Roberts acknowledged that partisan gerrymandering is “incompatible with democratic principles.” However, the opinion concluded that the Constitution does not provide a standard for judges to determine the legality of a gerrymander. For this reason, federal judges simply have no role to play in reviewing partisan gerrymanders.

Writing for herself and Justices Ginsburg, Breyer, and Sotomayor, Justice Kagan issued a strongly worded dissent, arguing that courts could and should address this threat to the democratic process. She asserted that the “need for judicial review is at its most urgent in cases like these,” in which politicians act to undermine democracy. To counter the court’s fear of a lack of standards, she pointed to the decisions on appeal, as well as other cases, in which judges have used statistical methods to compare gerrymandered districts with maps drawn according to states’ traditional districting principles. She also contended that the court could draw guidance from its holdings striking down gerrymanders if racial motives predominate.

From the perspective of 2019, Rucho has substantial partisan significance. Broad Republican gains in state legislatures in the 2010 mid-term elections gave the party great leverage over redistricting following the 2010 census—and more opportunities for gerrymandering. Of course, as the Maryland case indicated, both Democrats and Republicans can and do engage in partisan gerrymanders when they have the opportunity.

The case also reflects a divide in judicial philosophy. Throughout the 1960s and 1970s federal courts often broadly construed constitutional and statutory provisions to advance ideals of equality and democracy, with interpretations based less on specific text, and more on the fundamental principles underlying the documents. A generation of more conservative judges came of age with an antipathy to those decisions and their methodology. The dissenters in Rucho honor the tradition of judges vindicating constitutional values amidst changing circumstances, including fashioning remedies for defects in the political process. The five-justice majority evinces skepticism for this understanding of the judicial role.

Rucho ends the federal court struggle over partisan gerrymandering, but will likely accelerate the battle in the states. The reaction is proceeding along two parallel tracks. The political parties are gearing up to win state legislative seats and to seek to entrench their partisan advantage through gerrymanders that are now immune from federal constitutional scrutiny. At the same time, opponents of partisan gerrymandering are taking their cases to the states as well. Litigation challenging partisan gerrymandering under state constitutions has been successful in Florida and Pennsylvania and will likely follow in other states. About a third of the states use commissions to draw legislative lines, removing the decision from partisan legislative politics. Advocates are proposing extending commissions to other states, either through legislative action or through popular initiative, in the states that permit this form of direct democracy. 

To the majority, Rucho represented a recognition of the limited role for federal judges in a system that grants broad electoral authority to states legislatures. To the dissenters, the decision represented an unprecedented abdication of the Supreme Court’s constitutional responsibilities. The fate of state reform efforts may well determine which interpretation ultimately prevails.

—Robert A. Schapiro
Asa Griggs Candler Professor of Law