On Wednesday, the United States Supreme Court heard
arguments “in a challenge by Republican voters to a U.S. House of
Representatives district in Maryland that was reconfigured by Democratic state
legislators in a way that helped the Democrats defeat an incumbent Republican
congressman.” [1]
That is, the Maryland Democrats engaged in gerrymandering, that societal
pestilence that every principled person opposes, but for which a cure has yet
to be agreed on.
And that was precisely the problem facing the Court. Sure,
we know there is partisan gerrymandering, but what to do about it appears to
perplex our best minds.
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| 1812 Political Cartoon |
The first question is whether the courts should get involved
at all. The second is, if the courts should get involved, what standard should
be applied.
Now if the Court decides that it shouldn’t trouble itself
with a political issue of this kind, your humble servant encourages the reader
to view it as a cop out. The only reason for gerrymandering is to tip the
playing field in favor of one party, to create a situation where one point of
view is underrepresented in relation to the number of people who hold to it. If
such a practice is allowed to go on unimpeded, any suggestion that we live in a
republic will, once and for all, become a mockery.
During the arguments, Justice Stephen Breyer recognized the
constitutional violation in having “deliberate, extreme gerrymandering,” but
wondered whether there “is there a practical remedy that won’t get judges
involved in every — or dozens and dozens and dozens of very important political
decisions?” In other words, how can the Court enunciate a standard that can be
applied across a wide variety of gerrymandering cases?
It would be difficult to come up with such a standard. It
might even be impossible. But, as they say, so what?
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| Associate Justice Stephen Breyer |
The Court isn’t being called upon to decide every
gerrymandering case that might arise in the future. It is being called upon to
decide the case before it. The Supreme Court isn’t required to come up with a
general principle that will apply to all cases, then apply that principle to
the case before it. Instead, principles develop over time from the decisions
that are made in a particular area. Indeed, a mechanical application of a rule
without reference to the concrete case before the Court runs the danger of
working an injustice, since the facts of one case may materially differ from
another, even if both cases share subject matter.
There is no precedent for the Court striking down a
gerrymandering scheme concocted to favor a particular political party. But the
fact that such schemes strike at the very heart of republican government cannot
be denied. What the Court should do here is strike down the gerrymandering
device with which it is now confronted, and explain its reasons. Precedent will
then be created, and the rule that can be gleaned from that precedent will
develop as more cases involving political gerrymandering come before it.
That’s how it’s supposed to work in common law countries
like the United States. For the Court to impose upon itself the obligation to
come up with a general rule that will cover all political gerrymandering cases
in the future before it dares to make a decision would entail a classic case of
horse and cart inversion.
