Supreme Court ‘Gobbledygook’
The Supreme Court debated the legality of partisan gerrymanders on Tuesday, with swing Justice Anthony Kennedy giving few clues about his vote in Gill v. Whitford . But for our money, the key exchange came in Chief Justice John Roberts ’ questioning of Paul Smith, the lawyer for plaintiffs who say Wisconsin’s gerrymander is so partisan that it violates the Constitution.
The Chief zeroed in on risks for the credibility of the judiciary if the Supreme Court invalidates a state electoral map on purely political grounds for the first time. His reference to EG is to a political science standard offered by the plaintiffs as a test of when an electoral map is too partisan.
Chief Justice Roberts: “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 the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG [the efficiency gap] was greater than 7%, 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.”
Mr. Smith: “Your Honor—”
Chief Justice: “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7%. That doesn’t sound like language in the Constitution.” . . .
Mr. Smith: “If you let this go, if you say this is—we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.
And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like—everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”
Chief Justice: “No, but you’re going to take this—the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”
Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.
Appeared in the October 4, 2017, print edition.