The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and who have lived here their whole lives are only in danger of deportation because of the inaction of the national legislature. The President can impose a twenty-five percent tariff on aluminum and steel from Canada on grounds of national security only because Congress gave him that unilateral power. And rules protecting the environment can be reversed only because Congress has not revisited and updated the enabling legislation in decades. In a well-functioning democracy, we would not need an unelected federal judiciary to save us from these and a long list of other destructive and often unpopular outcomes.
But we do not have a well-functioning democracy. The composition of the House is skewed in favor of, and entrenches the party now in power. In 2012, Democrats outpolled Republicans by 1.4 million votes (49.16% of the votes), but Republicans attained a 33-person majority. In the 2016 congressional elections, Republicans won 49% of the vote (or about 1.4 million more votes than Democratic candidates) but held 241 out of 435 seats (or 55%).
That is because in many states the legislatures are even more heavily skewed, and it is they who draw the congressional district lines. North Carolina is one of the worst. In a state with a fairly evenly split Republican/Democrat voter base, the state legislature has drawn the district lines so that ten of the thirteen congressional districts are reliably Republican. The chairman of the legislative committee that drew these lines, asked why he had produced a ten to three split, famously responded that that was because he couldn’t find a way to make it eleven to two. This is a travesty from which only the courts—and eventually the Supreme Court—can save us.
To be sure, that is an argument that may provoke skepticism rather than conviction. In last Term’s partisan gerrymander case, Gill v. Whitford (in which I was counsel for amici past and present statewide Republican officeholders supporting plaintiffs-appellees), the Chief Justice reacted to it thus:
At argument on appeal in this case, counsel for the plaintiffs argued that this Court can address the problem of partisan gerrymandering because it must: The Court should exercise its power here because it is the “only institution in the United States” capable of “solv[ing] this problem.” Such invitations must be answered with care. “Failure of political will does not justify unconstitutional remedies.” Our power as judges to “say what the law is” rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right. (citations omitted)
We have seen this movie before. In 1962, in Baker v. Carr, the Court embarked on its one-person-one-vote course of decisions condemning vast population disparities between districts. The Court disregarded a strong current of dissent led by Justice Felix Frankfurter, who counseled against “enter[ing] this political thicket.” He argued that redistricting was an unavoidably partisan matter, for the judicial resolution of which no sufficiently neutral metric could be found and no clear constitutional mandate authorized court intervention. Yet in a relatively short time, basing its intervention on the Equal Protection Clause of the Fourteenth Amendment, just such a metric was developed by a common law process–starting with the most extreme cases until a standard application has now become routine to enforce population equality in congressional, state districts, and even in more local political units. In 1993, in spite of analogous “political thicket” warnings, Shaw v. Reno initiated an analogous but more difficult process in respect to racial gerrymanders.
There is a clear constitutional warrant. As long ago as 1986, the Court recognized that partisan gerrymanders manifestly offend the Fourteenth Amendment’s constitutional guarantee of equal protection. They are also contrary to the First Amendment’s guarantee of freedom of association, as Justice Kennedy argued in Vieth and Justice Kagan, writing for four Justices, recently elaborated in Gill. Yet Since 1986 no Court majority has been willing to join the radical view that this was an issue forever and in principle beyond the reach of the judiciary. Over and over again, it has been a case of—in the words of St. Augustine—Lord, make me pure, but not yet. Four Justices have been willing to pull the trigger on this outrage, but Justice Kennedy has publicly agonized that a sufficiently clear metric has not yet been found.
The Supreme Court Term just ended brought to the Court two cases, one from Wisconsin and one from North Carolina, with facts so egregious and lower court findings of fact so irrefutable that many hoped that finally the time had come: Justice Kennedy could no longer withhold his fifth vote—and maybe a sixth, maybe even a seventh Justice would follow. Though it is impossible to say just how many hairs a man may sport on his head and still count as bald, surely the smooth, shiny pate must announce a clear case if the word is to have any meaning—and we all understand it does. Wisconsin and North Carolina are surely as bald-faced examples of naked partisan gerrymanders as we will ever see. And given the capabilities of recent algorithms and data-mining techniques, Wisconsin and North Carolina are likely to become the norm.
So it seemed that the time had finally come when it would no longer be possible to avoid deciding whether Justice Frankfurter’s “political thicket,” do-not-enter approach would prevail or the Court would take its first tentative in the opposite direction. But no! In the Wisconsin case, the Chief Justice ruled (without dissent from a single Justice) that the named plaintiffs did not have standing to pursue their case (although on conventional grounds one of the plaintiffs might well have met that technical bar) and that the case must be sent back to the lower court. Justices Thomas and Gorsuch protested that the usual conclusion would have been simply to dismiss, not to keep the case alive so the lower court might cure this technical defect and force the Supreme Court to confront it again. Curioser still, the Court in a short, unexplained paragraph sent the North Carolina case, which was even more blatant and did not suffer from the same (possible) technical flaw, back to the lower court for reconsideration in light of the Wisconsin case. The legal world was left scratching its collective head, the more so because both dispositions were unanimous. The mystery was soon solved: two days later Justice Kennedy announced his retirement. Both cases will come back, but will only be decided after the November 2018 election in which gerrymandered state legislatures will again return their democratically compromised results and with a new Justice in Justice Kennedy’s seat.
That is why who will sit in that seat is of supreme importance. Today the nominee for that position is Brett Kavanaugh. What do we know of his views on this matter? Very little, and don’t try asking. In many ways he seems to be a younger version of Chief Justice Roberts: highly intelligent, well educated (double Yale to Roberts’s double Harvard), experienced in the ways of Washington, an excellent writer, and a fine human being.
We may hope that Justice Kennedy, on his way out the door, wished to leave to his successor the honor of participating in one of the Court’s and our democracy’s most consequential decisions.