Friday, March 30, 2018

Of Horses, Carts, and Gerrymandering

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.

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?

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.