Justice Kagan begins her dissent with this: "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities."
The court holds that none of the proposed "tests" for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable -- e.g., there's not a good test to use to decide them.
From the end of the majority opinion: "No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority."
The holding here is that such claims are non-justiciable -- that they are not of the kind that courts can decide. That admits of very few factual exceptions, if any. Essentially, if your claim sounds in partisan gerrymandering, the courts cannot accept it.
Toward the end of the opinion, Roberts acknowledges that "excessive partisanship in districting leads to results that reasonably seem unjust." But that does not mean, he says, that "the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."
The Chief's opinion does distinguish other kinds of voting-related / districting claims that sound in Equal Protection principles. But there is not a lot of room left here for anything that sounds like political rather than racial discrimination.
Roberts says the states can pass laws to deal with partisan gerrymandering, and so can Congress.
Justice Kagan, calling out the majority: "I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” "
But, he points out, the states are addressing the issue, and Congress has the power to do something about partisan gerrymandering. "We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open."
The court sends both the Maryland case and the North Carolina case back to the lower courts with instructions to dismiss for lack of jurisdiction..
Roberts is still reading from his opinion. Don't know yet whether Kagan will read from her dissent.
Justice Kagan points out that modern technology has allowed a degree of partisan gerrymandering that was never possible before.
"What the appellees and dissent seek," Roberts write, "is an unprecedented expansion of judicial power."
Many commenters are pointing out the circularity of relying on politics to rein in this kind of political abuse. That critique makes a lot of sense, of course. But sometimes that circularity does break down. I would not be surprised to see the political salience of gerrymandering continue to rise as a political issue in future cycles, and become a winning issue for politicians advocating a fix for it. Whether that ever does enough to become a serious fix remains a question. As it's etymology suggests, this is an old problem.
He is still reading, by the way. I am going back in to be ready if Kagan doesn't read from her dissent.
The Court has tried for years to avoid deciding political-gerrymandering issues. But these cases come to the Court on its mandatory appellate (as opposed to discretionary certiorari) docket, so the Justices couldn't avoid it forever.
There are some pretty strong feelings expressed in these opinions. Many have pointed out the synergy between these cases and the Census case -- we will know soon how that one turns out...
Justice Kagan is now reading from her dissent in the case, so we could be here for a while before the next opinion is released.
Justice Kagan's closing paragraph: "Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. "
The Chief's opinion repeatedly invokes Justice O'Connor, whom he describes as a "Justice with extensive experience in state and local politics," for the point that states should be able to have a fair amount of leeway in drawing their maps.
For constitutional law and theory nerds, today's disputes recommend reading John Hart Ely's famous book "Democracy and Distrust." The argument is that cases protecting the fairness of the political process and protecting minorities is where judges should be most sensitive to the rights involved.
I think it's fair to say that Justice Kagan does not read her dissents all too often, and that they tend to surround this exact theme of protecting the political process.
Okay, I'm headed back in to wait for the next one, which I'm guessing is the census case.
Several questions about why Kagan seems to think that state courts can't deal with this effectively. It's not clear she thinks that -- in fact, she points to the PA Supreme Court's handling of these issues. But in some States, members of the judiciary are elected, presumably based on the same gerrymandered maps that would be challenged. Hard to know whether that would affect their views on the manner in which those maps were drawn.
As the Florida amendment on felon voting rights showed last election cycle, there is often a lot of popular support for neutral principles of voting rights, even when they are politically loaded. I would expect a lot of efforts to get anti-gerrymandering amendments on to state referendums and ballot initiatives in coming years.
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