Is There a Silver Lining in the Wisconsin Gerrymandering Standing Decision?

by Michael C. Dorf

This is shaping up as a real nothing of a Supreme Court Term. Two weeks ago, the Court ducked the important questions in Masterpiece Cakeshop and Hughes v. United States. Today the Court ducked the question whether claims challenging partisan gerrymandering present non-justiciable political questions and if not, how to adjudicate them. In a brief per curiam in Benisek v. Lamone, the Court affirmed the district court's denial of preliminary injunctive relief in Republicans' challenge to Maryland gerrymandering, relying entirely on the technical details of the standard for a preliminary injunction. Meanwhile, in an opinion by CJ Roberts for a more or less unanimous Court, the justices declined to say anything about the justiciability or merits of Democrats' challenge to Wisconsin gerrymandering in Gill v. Whitford, resolving the case on the grounds that the particular plaintiffs had failed to prove the elements of standing at trial.

Not all non-decisions are the same. When the Supreme Court ducks a question that the lower courts have been deciding in a way that one approves, then one can be sanguine. It's not as good as a SCOTUS victory, but it's not bad either. That's the lemonade that supporters of LGBT rights (like me) can make out of lemons like the Masterpiece Cakeshop non-decision of the key issue. However, if one disapproves the status quo--either in the lower courts or pursuant to current SCOTUS precedent like Vieth v. Jubilirer--then a non-decision is almost tantamount to a bad decision.

Nonetheless, Justice Kagan, in a concurrence joined by Justices Ginsburg, Breyer, and Sotomayor, tried to make some lemonade out of the Gill v. Whitford lemon. Did they succeed?

The immediate answer is no. The Court in Gill remands to the district court in order to give the plaintiffs an opportunity to prove standing. I suppose that the case could be put on an expedited schedule and move along rapidly, but there's a decent chance that it won't get back to the US Supreme Court until after the 2020 elections and the 2020 census. By then, additional damage may have been done by virtue of state and national elections conducted using gerrymandered maps. It's also possible that by the time the issue returns to the SCOTUS, its personnel will have changed in a way that is less favorable to the claim.

Justice Kagan's concurrence attempts to paint the ruling in a positive light. She says she agrees with the Chief Justice that the plaintiffs failed to provide evidence that they themselves were relegated to "packed" or "cracked" districts but that on remand that should be relatively easy to prove--given that the composition of each district is likely to be affected by the composition of all the others. Thus, even though the majority demands district by district proof, Justice Kagan says that statewide evidence could, if put in the right context, provide it.

Justice Kagan also suggests that statewide evidence could be directly relevant to the plaintiffs' First Amendment freedom-of-association claims, which she says weren't presented with sufficient clarity in the Supreme Court to address them. Although she doesn't say so expressly, I read Justice Kagan as drawing a rough analogy to the race cases. In Shaw v. Reno and its progeny, the Court allows plaintiffs to challenge the districts in which they vote without the same sort of showing they would need to make out a vote dilution claim. Likewise in Gill, where the majority opinion disallows standing for a vote dilution claim, Justice Kagan suggests that an analytically distinct kind of claim might succeed.

But don't count on any of that. It's common for concurring justices to try to gloss the majority opinion in a way that comes closer to their own views. Usually, the author of the majority opinion doesn't respond. Yet in Gill CJ Roberts goes out of his way to say this: "The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other." That is a none-too-subtle invitation to the district court and other lower courts to disregard what Justice Kagan writes in her concurrence.

Despite all of that, the disposition in Gill contains grounds for cautious optimism that the Court (at least as currently configured) would find in favor of a challenge to partisan gerrymandering. Jurisdictional determinations take priority over merits determinations. Thus, ordinarily if the Court decides a case on standing grounds, one cannot infer very much if anything about the merits. But here, the Court could have disposed of the case on two possible jurisdictional grounds: no standing or non-justiciable political question. If there were five votes to say that challenges to partisan gerrymandering remain non-justiciable, deciding the case on those grounds would have made a great deal of sense. The fact that the Court instead chose to resolve the case on standing grounds can thus be taken as a sign that Justice Kennedy--who wrote a concurrence in Vieth allowing that a manageable standard for judging partisan gerrymandering might some day be found--still hasn't foreclosed the possibility of invalidating a districting plan as an unconstitutional partisan gerrymander.