Last October, when the Supreme Court heard a landmark challenge to Wisconsin’s gerrymandered state assembly maps, there appeared to be a real danger that the state’s lawmakers would soon have to compete in a free and fair election. More than half a year later, the fate of partisan gerrymandering appears even more uncertain — and the Court just gave a new sign that such gerrymandering may yet survive.
The Court ordinarily tries to distribute work equitably among its members. If it hears nine cases in a particular month, each member of the Court will typically be assigned one majority opinion from among those nine — rather than having some justices write two opinions and some write none. For this reason, it is often possible to predict which justice will write a particular case based on who has not yet written a decision from a particular month.
Which brings us to the chart on the left, which comes to us from SCOTUSBlog.
Before Monday morning, every member of the Court but two — Chief Justice John Roberts and Neil Gorusch, who occupies the seat Senate Republicans held open for a year until Donald Trump could fill it — handed down one opinion from the Court’s October sitting. Then, on Monday, Gorsuch handed down a 5-4 decision in Epic Systems v. Lewis.
That means that there is only one outstanding case from October — Gill v. Whitford, the Wisconsin gerrymandering case. And there is only one member of the Court — Chief Justice Roberts — who hasn’t written a majority opinion from that month. If the Court follows its ordinary practice, Roberts will write Gill.
If true, that’s very bad news for opponents of gerrymandering. During oral arguments in Gill, Roberts appeared very concerned that the plaintiffs’ legal theory would require judges to do math. Roberts’ overall approach to election law is animated by a kind of naive conservatism. He does not understand much about how elections work, and his instincts typically favor conservative outcomes.
Now, in fairness, it is far from certain that Roberts will write Gill. Or that Gill will come down in favor of gerrymandering. Until about two months ago, the Court appeared to be cruising towards a decision striking down at least some partisan gerrymanders. Last March, in a Maryland gerrymandering suit called Benisek v. Lamone, there appeared to be five justices who wanted to rule against that gerrymander — even though they could not agree on a rationale for doing so.
So it is possible that Roberts assigned himself the Gill opinion as a placeholder while his colleagues figure out whether they can assemble an anti-gerrymandering majority. It’s also possible that Roberts — who, as chief justice, has the power to assign opinions — strategically voted with the liberals so that he could write a watered-down opinion. It’s also possible, if unlikely, that Roberts has come around to the view that partisan gerrymanders are unconstitutional.
But if you believe that a mandate to govern flows only from the will of the people, you’d have a lot more to smile about right now if Justice Ruth Bader Ginsburg was the only justice who hadn’t written an October opinion.