Cite as: 588 U. S. ____ (2019)
15
KAGAN, J., dissenting
be striking down maps left, right, and center, on the view
that every smidgen of politics is a smidgen too much.
Respect for state legislative processes—and restraint in
the exercise of judicial authority—counsels intervention in
only egregious cases.
But in throwing up its hands, the majority misses something under its nose: What it says can’t be done has been
done. Over the past several years, federal courts across
the country—including, but not exclusively, in the decisions below—have largely converged on a standard for
adjudicating partisan gerrymandering claims (striking
down both Democratic and Republican districting plans in
the process). See also Ohio A. Philip Randolph Inst., 373
F. Supp. 3d 978; League of Women Voters of Michigan v.
Benson, 373 F. Supp. 3d 867 (ED Mich. 2019). And that
standard does what the majority says is impossible. The
standard does not use any judge-made conception of electoral fairness—either proportional representation or any
other; instead, it takes as its baseline a State’s own criteria of fairness, apart from partisan gain. And by requiring
plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.
Below, I first explain the framework courts have developed, and describe its application in these two cases.
Doing so reveals in even starker detail than before how
much these partisan gerrymanders deviated from democratic norms. As I lay out the lower courts’ analyses, I
consider two specific criticisms the majority levels—each
of which reveals a saddening nonchalance about the threat
such districting poses to self-governance. All of that lays
the groundwork for then assessing the majority’s more
general view, described above, that judicial policing in this
area cannot be either neutral or restrained. The lower
courts’ reasoning, as I’ll show, proves the opposite.