2
RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
sanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left
unchecked, gerrymanders like the ones here may irreparably damage our system of government.
And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country,
including those below, have coalesced around manageable
judicial standards to resolve partisan gerrymandering
claims.
Those standards satisfy the majority’s own
benchmarks. They do not require—indeed, they do not
permit—courts to rely on their own ideas of electoral
fairness, whether proportional representation or any
other. And they limit courts to correcting only egregious
gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used
here do allow—as well they should—judicial intervention
in the worst-of-the-worst cases of democratic subversion,
causing blatant constitutional harms. In other words,
they allow courts to undo partisan gerrymanders of the
kind we face today from North Carolina and Maryland. In
giving such gerrymanders a pass from judicial review, the
majority goes tragically wrong.
I
Maybe the majority errs in these cases because it pays
so little attention to the constitutional harms at their core.
After dutifully reciting each case’s facts, the majority
leaves them forever behind, instead immersing itself in
everything that could conceivably go amiss if courts became involved. So it is necessary to fill in the gaps. To
recount exactly what politicians in North Carolina and
Maryland did to entrench their parties in political office,
whatever the electorate might think. And to elaborate on
the constitutional injury those politicians wreaked, to our
democratic system and to individuals’ rights. All that will
help in considering whether courts confronting partisan