American Justice 2018

The Shifting Supreme Court

Todd Ruger

• Publisher: University of Pennsylvania Press
• Year: 2018
• Print ISBN:
  9780812250855
  9780812250855
• eBook ISBN:
  9780812295863
• Topic: Law
• Subtopic: Public Law
• Index: Law

After a restrained 2017 term in which the Supreme Court muddled through most of its work with just eight justices, the court roared back to life with a momentous term in 2018. With Donald Trump's first appointment to the bench, conservative Justice Neil Gorsuch, finding his footing and swing-vote Justice Anthony Kennedy preparing for retirement at the close of the term, the Court took on a series of cases that touched on some of the most contentious issues in contemporary American life—and in almost every case gave Americans a glimpse of where the court is likely to keep shifting over the coming years: further to the right.In American Justice 2018, journalist Todd Ruger examines the most monumental of these controversial decisions—including those involving religious freedom and minority rights, partisan gerrymandering, President Trump's travel ban, privacy in the digital era, sales tax for online retailers, and apparent tensions between the First Amendment and the collection of union dues. Ruger deftly analyzes how each of these decisions fits into the history of the court—and what the opinions and dissents reveal about the shifting ideological configuration of the institution. Along the way, Ruger reflects on how the term's polarizing docket will shape the future of the Supreme Court and the legacy of individual justices.

Chapter 1

Drawing Political Lines

Gerrymandering is a political tradition as old as America’s democracy. Politicians draw the boundaries of political districts within their state, carving out the areas that members of Congress or state legislators represent. So, of course, both Republicans and Democrats manipulate those lines to create an advantage for their political party and their political allies. The term gerrymandering emerged from an election in 1812.

But as the Supreme Court convened more than two hundred years later for the 2017 October Term, advocates for fairer elections warned the justices that the abuses of gerrymandering had become so great that they threatened democracy itself. They said that state lawmakers, with the help of increasingly powerful computers and data analytics, could carve maps that would entrench their party in power. Those legislative districts baked in such an advantage that voters were powerless to change which party would win there and represent them in Congress or the statehouse. And that ensured the same party could retain control of drawing the maps—perpetuating a cycle that could leave members of one party entrenched in power, with the other party incapable of dislodging them.

On its face, the case before the justices, Gill v. Whitford, was about the ninety-nine statehouse districts in Wisconsin. But the real fight was about whether the Supreme Court would, for the first time, allow federal courts to stop partisan gerrymanders to stem the risk of erosion of the right of Americans to choose their representatives.

And the challengers pressed that the time to act was right now. Republicans and Democrats already had ramped up to spend tens of millions of dollars on efforts to seize control of the redistricting process in key states ahead of the 2020 census. Without the court’s intervention, the resulting maps drawn after the census could be so lopsided and enduring that citizens would lose faith that their vote matters, said Paul Smith, an attorney representing voters who challenged Wisconsin’s statehouse map.

“We’re here telling you, you are the only institution in the United States that can solve this problem, just as democracy is about to get worse, because of the way gerrymandering is getting so much worse,” Smith told the justices during oral arguments.

For the “you” in that plea, read in “Justice Anthony M. Kennedy,” since the whole issue appeared all but certain to turn on his vote. Kennedy previously had recognized the problems with partisan gerrymandering. But he had struggled with the question of when courts should step in to say there is too much politics in what is always an inherently political process. With his approach to retirement, legal experts predicted this would be his last chance to fix what he considered a major flaw in the American political landscape.

The outcome of the case shows not only how legal groups often targeted Kennedy as the pivotal justice on the most contentious issues of the day, but also how the Supreme Court as an institution, to guard its status and integrity against charges that it favors one party over the other, sometimes treads cautiously into polarizing political disputes.

Through the lens of Kennedy’s retirement, the case also provides clues that the court isn’t ready to leap into the middle of the high-stakes redistricting battle.

Back in 2004, Kennedy was not shy in criticizing how political the redistricting process had become, in a case called Vieth v. Jubelirer. That was the last time the Supreme Court had considered partisan gerrymandering.

Back then, Republicans controlled a majority of Pennsylvania’s legislature, as well as the governor’s office, and they redrew the state’s congressional map after the 2000 Census. It was part of a political scrap. The national Republican Party sought to use the Keystone State’s redistricting plan to punish Democrats for partisan gerrymanders in other states. Kennedy was the deciding vote, skewering the behavior, in his characteristically passionate yet restrained style.

“The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned,” Kennedy wrote separately in the case. “That should not be thought to serve the interests of our political order. Nor should it be thought to serve our interest in demonstrating to the world how democracy works.”

Yet Kennedy declined to strike down Pennsylvania’s map as a partisan gerrymander because of a big question: how do courts determine when politics played too big of a role in creating the district boundaries? Without knowing how to measure that, he wrote, the results from one gerrymandering case to the next would be inconsistent.

There are plenty of ways a political map can be challenged on other grounds—if the lawmakers inappropriately used race to draw lines, for example, or didn’t follow standard redistricting principles such as making each district have essentially the same number of people. Plenty of Supreme Court decisions explain how lower courts can decide if a map is unconstitutional. But the partisan gerrymandering standard remained elusive.

Kennedy’s position in Vieth meant that the Supreme Court at the time would not let courts strike down political maps as partisan gerrymanders. But Kennedy left the door wide open to doing that in the future if his questions were answered.

“If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief,” he wrote.

Ten years later, a research fellow’s idea appeared to answer Kennedy’s call. Eric McGhee at the Public Policy Institute of California came up with a mechanism to express in a single tidy number the systematic advantage a congressional map gives one political party. He worked it into a legal theory with Nicholas Stephanopoulos, then an assistant professor at the University of Chicago Law School, and the duo eventually published a law review article in 2014. They called it the “efficiency gap.”

The mechanism uses just a bit of math to boil down the level of partisan gerrymandering in a state. It does so by breaking down how partisan gerrymandering works. State lawmakers who control the redistricting process want their party’s candidates to win more seats. One way to help do that is to draw a map that allows their party’s candidates to win each district with as few votes to spare as possible, while the opposing party’s candidates win in blowouts. That can be achieved in two ways: consolidate the opposing party’s voters into a single district, known as packing; or break the opposing party’s strongholds in a way that dilutes the votes, known as cracking.

The efficiency gap measures the amount of packing and cracking by counting “wasted votes,” or votes that didn’t determine the outcome of an election in a district. For example, all votes that Democrats cast in a district where the Democratic candidate loses would be counted as wasted votes. So would votes Democrats cast above the 50 percent level needed in a district where the Democratic candidate wins.

If both parties have the same number of wasted votes across a statewide election, the efficiency gap would be zero. There would be no gap between the wasted votes, so no advantage to one party. If there is a difference, the efficiency gap divides each party’s number of wasted votes by the total number of votes in the election, subtracts those two numbers, and the difference is the efficiency gap.

Stephanopoulos, along with the Washington, D.C.–based Campaign Legal Center, used the efficiency gap to pursue a federal lawsuit on behalf of a dozen Democratic Wisconsin voters. The metric showed that the map for state legislative districts that Republican lawmakers enacted in 2011 gave Republicans a big advantage in the 2012, 2014, and 2016 elections. Stephanopoulos described in an opinion piece published in Vox that the plaintiffs combined that efficiency gap with other metrics to make a compelling case: the Wisconsin map was more skewed than most historically. That result wasn’t because of the geography of the state. And the advantage to Republicans is likely to persist even if the statewide vote swung to Democrats in a historic way.

In 2016, a panel of three federal judges in Wisconsin agreed with the Democratic voters. The court, in a 2–1 vote, struck down the Wisconsin State Assembly’s map as a partisan gerrymander—the first time that had happened in more than thirty years. Among the reasons for the ruling, the panel noted the skewed results that can result from skewed lines: Republicans won 61 percent of the state’s ninety-nine Assembly seats with just 49 percent of the statewide vote in 2012, and Republicans won 64 percent of the Assembly seats with only 52 percent of the statewide vote in 2014.

Wisconsin officials appealed, and such an elections-related appeal goes directly to the Supreme Court. The justices would have to decide.

The Terminator joined those who urged the Supreme Court to step in to stop partisan gerrymandering.

The actor-turned-California-governor, Arnold Schwarzenegger, who played the killer robot from the future in Hollywood movies, was among a group of Republican former governors and U.S. senators who filed a brief in the case to say that the practice was harming the republican form of government and that politicians refused to fix it on their own.

“Gerrymandering is not a Republican or Democrat issue—it is a voter’s issue,” Schwarzenegger said when the group’s brief was filed at the court. “Politicians of both parties draw maps to benefit their own interests—but never the voters.”

Even as Schwarzenegger spoke, the political parties were bulking up and dedicating huge amounts of money for nationwide campaigns to control crucial local offices ahead of the 2020 census. The census requires every state to redraw its congressional maps. Ten years earlier, national party Republicans made a major push to gain those governorships and legislative bodies that would redraw congressional maps after the 2010 census. It largely caught the national Democratic Party flat-footed, and Republicans swept into those positions. The Republican State Leadership Committee already has relaunched its effort for the next census as REDMAP2020, with a goal to raise $125 million to defend those state majorities.

Democrats intend to fight back this time. They say the Republican redistricting advantage allowed Republican candidates to win a thirty-three–seat majority in the House in the 2012 elections, despite winning fewer than half of all votes for Congress. Democrats formed a new group led by former Attorney General Eric H. Holder Jr. and backed by Barack Obama. The group, the National Democratic Redistricting Committee, has targeted twenty legislative chambers, nine gubernatorial races, and other races that it considers the “most important for shifting the balance of power in the redistricting process.” It aims to spend $30 million for the 2018 election cycle, including special statehouse races in Minnesota and a Supreme Court race in Wisconsin. The 2018 election is the first election cycle “where the officials elected will serve during the redistricting process in 2021,” the group said.

A bipartisan duo of sitting senators, Democrat Sheldon Whitehouse of Rhode Island and the late Republican John McCain of Arizona, warned the justices in a brief that big-money policy influencers used partisan gerrymandering as a tool at the expense of the public and democracy. They blamed the court’s Vieth decision from 2004 for giving state lawmakers leeway to draw district lines in the zealous pursuit of partisan advantage.

“Americans do not like gerrymandering. They see its mischief, and absent a legal remedy, their sense of powerlessness and discouragement has increased, deepening the crisis of confidence in our democracy,” the duo wrote. “From our vantage point, we see wasted votes and silenced voices. We see hidden power. And we see a correctable problem.”

The question would be whether Kennedy saw a way for the courts to be the solution.

The rest of the Supreme Court was just as divided as it had been in Vieth, even with the Terminator staring back at them from the gallery during oral arguments in one of the first cases in October. The court’s four liberals expressed concerns that partisan gerrymandering stacked the deck for a decade and chipped away at the fundamental right to vote by making it meaningless.

The conservative justices cast doubt that the efficiency gap, or any of the other metrics presented to them in the case, gave courts a clear way to resolve partisan gerrymandering claims. Chief Justice John G. Roberts Jr. called them “sociological gobbledygook.” Justice Samuel A. Alito Jr. said that gerrymandering was distasteful, but the standard must be manageable and sufficiently concrete. Justice Neil Gorsuch said the lower court’s reasoning in using various metrics to conclude that the map is unconstitutional reminded him of his steak rub: “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.”

But the most telling for the court’s future was a long, clearly preplanned description from Roberts about what he said was the “main problem” in the case, with his mind on the court’s reputation. Let’s call it the “intelligent man on the street” issue:

I would think if these—if the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country. Politics is a very important driving force and those claims will be raised. And every one of them will come here for a decision on the merits. These cases are not within our discretionary jurisdiction. They’re the mandatory jurisdiction.

We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the Court issues a decision, and let’s say, okay, the Democrats win, and that person will say: “Well, why did the Democrats win?” And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.

And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.

If Kennedy knew what he was going to do in the case, he didn’t telegraph it. He asked some questions to the lawyer representing Wisconsin about whether the voters in the case had the legal right to bring the case in the first place, called standing. It’s a standard threshold issue in a case—should it even be allowed in court?—that routinely comes up and sometimes can be the deciding issue. Later in the argument, Kennedy probed which standard courts should use, whether a partisan gerrymander would be unconstitutional under the First Amendment or the Fourteenth Amendment. It was a repeat of the issue he had grappled with in the Vieth case more than a decade earlier.

He didn’t ask any questions of Smith, the attorney for the voters.

Months later, the court seemed no closer to a resolution. In December, the Supreme Court agreed to hear arguments in another partisan gerrymandering case, Benisek v. Lamone. This time, the gerrymander was a single congressional district in Maryland, which brought different issues and a different legal theory to the court, in part because state officials clearly intended to flip the district from a Republican representative to a Democratic one. But when the court heard oral arguments on the Benisek case in March, the justices appeared just as unsure about where courts might step in.

The court didn’t issue a decision for months. When the justices finally did so in the two cases at the end of the term in June, they sidestepped the main issue altogether. Instead of a landmark ruling, the justices joined together in a unanimous compromise, holding that t...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Introduction. The End of the Kennedy Court
• 1. Drawing Political Lines
• 2. The Masterpiece Decision
• 3. How to Knock Down a Precedent
• 4. Privacy in the Digital Age
• 5. Empowering the Presidency
• 6. Gorsuch’s Arrival
• 7. The Sword of Free Speech
• 8. Shifting Right
• Epilogue. The Court’s New Center
• Appendix. Biographies of Current Justices of the Supreme Court
• Acknowledgments