26
RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
any measure, a map that produces a greater partisan
skew than any of 3,000 randomly generated maps (all with
the State’s political geography and districting criteria built
in) reflects “too much” partisanship. Think about what I
just said: The absolute worst of 3,001 possible maps. The
only one that could produce a 10–3 partisan split even as
Republicans got a bare majority of the statewide vote.
And again: How much is too much? This much is too
much: A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of
a district from 47% Republicans and 36% Democrats to
33% Republicans and 42% Democrats. A map that in 2011
was responsible for the largest partisan swing of a congressional district in the country. See Lamone, 348
F. Supp. 3d, at 519. Even the majority acknowledges that
“[t]hese cases involve blatant examples of partisanship
driving districting decisions.” Ante, at 27. If the majority
had done nothing else, it could have set the line here.
How much is too much? At the least, any gerrymanders as
bad as these.
And if the majority thought that approach too casespecific, see ante, at 28, it could have used the lower
courts’ general standard—focusing on “predominant”
purpose and “substantial” effects—without fear of indeterminacy. I do not take even the majority to claim that
courts are incapable of investigating whether legislators
mainly intended to seek partisan advantage. See ante, at
19–20 (focusing on the difficulty of measuring effects).
That is for good reason. Although purpose inquiries carry
certain hazards (which courts must attend to), they are a
common form of analysis in constitutional cases. See, e.g.,
Miller v. Johnson, 515 U. S. 900, 916 (1995); Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533
(1993); Washington v. Davis, 426 U. S. 229, 239 (1976).
Those inquiries would be no harder here than in other
contexts.