SCOTUS: Partisan Gerrymandering is a Non-Justiciable Political Question

[MarkD]

What a spineless nonsensical decision.

Seriously. This is absurd.

I don't think there is anything spineless or absurd about it. I'm just reading the Syllabus so far, and here is, for me, the most persuasive part of why partisan gerrymandering is non-justiciable.

Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments.

[MarkD]

So Roberts and Company decide that this is a matter left to the legislature in the States. And how are the legislators chosen? By a horribly gerrymandered system in States a b c d and e Etc. So the cure to the disease is warded by the disease itself. Brilliant.

Congratulations Republicans. You can't deal with democracy being on the perennially losing side of public opinion and the future, so you stole denomination of a moderate replacement to ensure your undemocratic cement on power.

2nd. Amendment. Remedies. Looks more necessary everyday I'm sorry to say

The U.S. Constitution specifically leaves Congressional redistricting solely to the State LEGISLATURES, not the Federal courts, absent instructions from Congress (which, outside of the VRA and ban on multi-member districts, don’t exist). That is a political question. The Constitution doesn’t require any specific rule for how states are to be redistricted - nor should any court impose one by fiat.

Your beef is with the state legislatures and Congress - both of which could impose standards if they wish.

What about Baker v. Carr, which explicitly held that cases involving redistricting were justiciable? That decision specifically placed the one man one vote rule on redrawing legislative districts.

One-man one-vote is a justiciable standard. What’s a “fair” map is not. That’s in the eye of the beholder.

There are any number of standards which have been advanced by scholars in recent years.

Which is precisely the problem - there are a number of standards, none of which are particularly more “fair” than the others. It’s up to the state legislatures and/or Congress to decide which is best - not the federal courts.

The legislators and Congress are directly constituted by the problem of gerrymandering. Do you not see this as a self-perpetuating issue?. Beyond that, please read the very well-reasoned descent. This is absolutely a justiciable issue. Let's not pretend that Kavanaugh, Thomas, and Alito or not dyed-in-the-wool partisans.

Yes, exactly.

Let's just wait for the North Carolina Republicans to pass a fair districting law.....oh wait, that'll literally never happen.

Or Texas Republicans, or Wisconsin Republicans, etc etc etc. You pair up and remember, many states do not have the ability to put referendum on the ballot to permit direct voter choice of a say our district in commission. Likewise some states don't have elected judiciaries and judicial nominees I'm this decision relies on to correct gerrymandering would be ratified, or blocked, by the same legislature who self-selected themselves with a gerrymandered map.

Just wanted to put in my two cents in this discussion, being a Democrat from Maryland who agrees that the Democratic-drawn Maryland map is atrocious and should be thrown out.

The reason why gerrymandering has become such a problem in recent years is that technology has opened Pandora's Box on what is possible. Before 15 or so years ago, map-drawers had to largely guess how their lines would work.

A computer-generated map can create a state assembly map of Wisconsin where even if a Democrat wins statewide, they only carry 35% of the seats. While I agree that strict proportionality is nearly impossible to create with the current district system, I believe that that is taking it too far.

If you read the Court's opinion, it was indeed grappling with a question "How far is too far?" The Court says it is a non-justiciable issue because there is no objectively right answer to that question. If there is no objectively right answer, then it is non-justiciable.

[MarkD]

If you're outraged at partisan gerrymandering, consider my suggestion for rewriting the 14th Amendment. Part of what I have drafted says,

States shall adopt redistricting processes to assure that congressional, state, and local legislative districts will not be “gerrymandered.” Iowa’s Legislative Services Bureau is one example of a permissible redistricting process, or states may adopt independent redistricting commissions; using algorithms is encouraged, but the power to draw districts must be taken away from each state legislature.

Iowa's Legislative Services Bureau draws maps for congressional districts and state legislative districts every ten years, and that Bureau was given specific instructions -- by the Iowa legislature decades ago -- to keep partisan politics and the home addresses of the incumbents out of mind when drawing the maps.

Wouldn't you rather have something like that, or independent redistricting commissions, do all the district maps from now on? Support my proposal for rewriting the 14th Amendment. I drafted it purposely trying to achieve balance between conservative and liberal goals, views, and ideals.

[MarkD]

You don't need a constitutional amendment. A simple law of Congress will do.

My amendment is going to a lot more than just deal with gerrymandering. In the meantime, it is not as "simple" to get Congress to pass a law as you think. There has been gerrymandering going on for a long time, and in all this time Congress has never lifted a finger to try to stop it. There's a Republican majority in the Senate, who may very well want to maintain the status quo.

[MarkD]

You don't need a constitutional amendment. A simple law of Congress will do.

My amendment is going to a lot more than just deal with gerrymandering. In the meantime, it is not as "simple" to get Congress to pass a law as you think. There has been gerrymandering going on for a long time, and in all this time Congress has never lifted a finger to try to stop it. There's a Republican majority in the Senate, who may very well want to maintain the status quo.

If you can't pass a simple law, how do you propose to pass a constitutional amendment, which has to be passed by 2/3rds of each house of Congress and ratified by 3/4ths of the states?

Via the Convention of State Project.

[MarkD]

SCOTUS is a Non-Political Political Institution

Shouldn't that be a Political Non-Political Institution?

Well, either way, there has been too much politics corrupting the interpretation of the Constitution, and that has occurred because too many Presidents have wanted to use their power to appoint Justices as a political tool, rather than a search for the most objective interpreters of law. Look at President Herbert Hoover appointing Benjamin Cardozo in 1932 for an example of the right choice for the Court for the right reason. Look at Circuit Court Judge Learned Hand for an example of the kind of judge who should have been elevated to the Supreme Court.

Choosing to appoint someone to the highest court of the land because the appointee is liberal, because they're conservative, because they're moderate is the wrong choice, leading to corruption of the Court. If we start insisting, to the presidential candidates, that they should be looking to the examples of Cardozo and Hand as what kind of people should be appointed, then maybe the Court will become a truly Non-Political Institution.