Two things were clear during Wednesday’s oral arguments in Benisek v. Lamone, a challenge to Maryland’s gerrymandered congressional maps. The first is that there are almost certainly five justices who think the maps need to go.
There is “no other reason” for drawing a map that is all but sure to elect seven Democratic members of Congress and only one Republican, “other than partisanship,” Justice Stephen Breyer declared. Justice Anthony Kennedy compared the map to a state constitution that explicitly required maps to be draw to discriminate against one party. When the Court briefly got caught up in a discussion of how much partisanship is too much partisanship in the redistricting process, Justice Elena Kagan cut that discussion off.
“However much you think is too much, this case is too much,” Kagan said of the Maryland gerrymander.
The second thing that was clear from the oral argument, however, is that the Court has no idea how it is going to write an opinion striking down the Maryland maps.
Ordinarily, when a lawyer steps to a podium, and the justices immediately start peppering them with questions about what should be the appropriate remedy in their case, that is a very good sign for that attorney. Courts typically resolve cases in a particular order — first deciding whether the plaintiffs win their case, then deciding what the remedy should be for the injury experienced by that plaintiff. So when the judges hearing a case are primarily concerned with what remedy should be provided, that’s a very good sign that the plaintiff is going to win.
When Michael Kimberly, the attorney arguing against the Maryland gerrymander, initially stepped to the podium, he appeared to be in such a fortunate position. Justice Ruth Bader Ginsburg quickly asked him whether or not it is too late for new maps to be drawn for the 2018 election, and Justice Kennedy sought an answer to this question as well. Justice Sonia Sotomayor wondered whether a remedy could be delayed until after 2018, because the plaintiffs may have waited too long to bring their legal theory to the courts’ attention.
Yet it quickly becomes clear that the justices may have something else on their mind, besides the question of how swiftly they can nuke Maryland’s maps. Chief Justice John Roberts, who, admittedly, is unlikely to join a decision striking down a partisan gerrymander, floated the possibility of avoiding a decision on the merits entirely. Justice Sotomayor, who almost certainly will join a decision striking down partisan gerrymanders, was open to this suggestion, asking Kimberly whether the lower courts could conduct a full trial on the merits of this case without the Supreme Court weighing in at all.
(The plaintiffs are seeking what is known as a “preliminary injunction” from the justices, a temporary order that courts may issue before a case has received a full trial.)
Then, Justice Breyer offered a suggestion that gave heartburn to many of the lawyers and journalists in the Courtroom. The Supreme Court, he declared, needs to come up with “a practical remedy” to gerrymandering that lower court judges can apply without involving themselves every single time a legislative map is redrawn. Meanwhile, there are several different gerrymandering cases before the Court, all of which offer different legal theories.
What if the Court puts off deciding this case until next year, Breyer suggested, and then holds a hearing where the parties in all three cases can offer their solutions to the problem of partisan gerrymandering together?
It was an ominous suggestion, not just because it indicates that a solution may need to wait another year, but because it could wind up putting off that solution for a very long time indeed.
Looming over Benisek is another gerrymandering case, Gill v. Whitford, which the Supreme Court heard last October. As was the case Wednesday, it seemed clear after October’s arguments in Whitford that a majority of the Court was prepared to strike down the gerrymandered map at issue in that case.
So the justices in the majority have likely spent the last six months pondering how to craft a decision invalidating the Wisconsin map at issue in Whitford. Breyer’s proposal suggests that the Whitford majority still doesn’t know what the decision will say.
Though Benisek and Whitford are superficially similar — both are partisan gerrymandering cases, though the Whitford case involves a Republican gerrymander and the Benisek maps were gerrymandered by Democrats — the legal teams behind those cases offer wildly different legal theories.
Whitford is a sweeping, ambitious challenge that would invalidate an entire state’s map at once, if that map were draw as a partisan gerrymander. The heart of Whitford is a mathematical formula that would give judges an objective standard to identify which maps are likely to be gerrymanders. If the Court embraces that formula, it would be a revolutionary decision that could render much of the high-stakes gerrymandering that exists today impossible.
Benisek‘s legal theory is far less ambitious. It requires plaintiffs to go district by district, challenging each one as a potential gerrymander. It also lacks the objective formula at the heart of Whitford. Few, if any, of the justices appeared eager to embrace the legal theory offered by the Benisek plaintiffs, even if there was a widespread sense that Maryland’s maps were simply too egregious to keep alive.
Fourteen years ago, in a case called Vieth v. Jubelirer, Kennedy wrote that he was not willing to strike down the alleged partisan gerrymander at issue in that case because he was unsure how to design a standard that would allow judges to sort gerrymandered maps from acceptable ones. He did, however, offer supporters of democracy a ray of hope — if workable standards do emerge to measure” the burdens created by gerrymanders, Kennedy wrote, “courts should be prepared to order relief.”
Wednesday’s oral argument suggests that five justices have not settled on a single workable standard. At the same time, however, it also suggests that five justices may have decided that partisan gerrymandering has become such an egregious problem that doing nothing is no longer an option. It’s possible that the opinion in Benisek will apply something similar to the late Justice Potter Stewart’s famous “I know it when I see it” test.
Whatever the Court says, there’s no guarantee it will do so quickly, and that raises another dark shadow over this case. Justices Kennedy and Ginsburg are in their 80s, and Justice Breyer is 79. Kennedy is rumored to be considering retirement.
If the anti-gerrymandering majority waits too long, it could become a minority. And then there could be no solution to gerrymandering for decades to come.