Cite as: 588 U. S. ____ (2019)
27
KAGAN, J., dissenting
Nor is there any reason to doubt, as the majority does,
the competence of courts to determine whether a district
map “substantially” dilutes the votes of a rival party’s
supporters from the everything-but-partisanship baseline
described above. (Most of the majority’s difficulties here
really come from its idea that ideal visions set the baseline. But that is double-counting—and, as already shown,
wrong to boot.) As this Court recently noted, “the law is
full of instances” where a judge’s decision rests on “estimating rightly . . . some matter of degree”—including the
“substantial[ity]” of risk or harm. Johnson v. United
States, 576 U. S. ___, ___ (2015) (slip op., at 12) (internal
quotation marks omitted); see, e.g., Ohio v. American
Express Co., 585 U. S. ___, ___ (2018) (slip op., at 9) (determining “substantial anticompetitive effect[s]” when
applying the Sherman Act); United States v. Davis, ante,
at 7–10 (KAVANAUGH, J., dissenting) (cataloging countless
statutes requiring a “substantial” risk of harm). The
majority is wrong to think that these laws typically (let
alone uniformly) further “confine[ ] and guide[ ]” judicial
decisionmaking. Ante, at 28. They do not, either in themselves or through “statutory context.” Ibid. To the extent
additional guidance has developed over the years (as
under the Sherman Act), courts themselves have been its
author—as they could be in this context too. And contrary
to the majority’s suggestion, see ibid., courts all the time
make judgments about the substantiality of harm without
reducing them to particular percentages. If courts are no
longer competent to do so, they will have to relinquish,
well, substantial portions of their docket.
And the combined inquiry used in these cases set the
bar high, so that courts could intervene in the worst partisan gerrymanders, but no others. Or to say the same
thing, so that courts could intervene in the kind of extreme gerrymanders that nearly every Justice for decades
has thought to violate the Constitution. See supra, at 13.