If a successful compromise is one that leaves both sides disappointed, then John Roberts had a banner day on Thursday. Liberals inclined to view the Supreme Court chief justice as a loyal Republican operative saw bitter confirmation in his decision that federal courts have no power to stop partisan gerrymanders. But conservative die-hards who questioned Roberts’s commitment to the movement will shake their heads at his decision to block the Trump administration, at least temporarily, from adding a citizenship question to the 2020 census. That’s not to say that the partisan impact of the two rulings will be symmetrical. Roberts, who once famously insisted that his job is “to call balls and strikes,” tends to afford Republican pitchers a wider strike zone. But the pair of rulings gave each side plenty to fume about.
If you don’t believe me, just read Justice Clarence Thomas’s dissent in Department of Commerce v. New York, the census case. The question was whether the U.S. Census Bureau, which is part of the Commerce Department, would be allowed to add a question to the 2020 census asking whether respondents are U.S. citizens or not. While Roberts agreed with the other four conservatives that the answer ordinarily would be yes, he joined the liberal bloc in ruling that Commerce Secretary Wilbur Ross’s stated rationale for adding the question—that it was necessary to allow the Department of Justice to protect minority voters—was transparently false. The real reason was that the Census Bureau’s own research showed that a citizenship question would suppress response rates among undocumented immigrants, thereby leading to an undercount in Democratic-leaning areas and further enhancing Republican power after the 2021 round of redistricting.
The proof of this was overwhelming. As Roberts put it in an understated summary:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.
In short, Roberts concluded, the voting-rights rationale was a pretext. Judges should give government officials the benefit of the doubt, he wrote, but “[a]ccepting contrived reasons would defeat the purpose of” judicial review.
You might think that would be an uncontroversial notion. But all four of Roberts’s conservative colleagues would have allowed the government to go forward with the question. Thomas’s dissent, which was joined by Trump appointees Neil Gorsuch and Brett Kavanaugh, was dripping in indignant contempt, all but accusing the majority of discriminating against the Trump administration: “The Court therefore upholds the decision of the District Court—which, in turn, was transparently based on the application of an administration-specific standard.” Later, in a passage that, other than syntactically, would not seem out of place in a Sean Hannity monologue, Thomas added: “I do not deny that a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web.”
From the pitch of his outrage, you could almost forget that Thomas and the conservatives claimed victory in the day’s more consequential ruling, on partisan gerrymandering.
There’s nothing inherently conservative about gerrymandering—indeed, Thursday’s case, Rucho v. Common Cause, involved both a Republican gerrymander in North Carolina and a Democratic one in Maryland—but the decision is a boon to Republicans for the simple reason that they currently benefit far more from it. There are, in other words, more North Carolinas than Marylands. When Republicans swept into power in statehouses around the country in 2010, just in time for redistricting, they were armed both with both sophisticated new technology and an unprecedently rigorous plan for deploying it. The result is that in many states, Democrats are effectively locked out of taking back the legislature. In Wisconsin, for example, Democrats won 53 percent of the popular vote last year—and only 36 percent of legislative seats.
In his majority opinion in Rucho, Roberts didn’t deny that partisan gerrymandering is bad for democracy. Rather, he argued, there’s simply no manageable way for federal courts to police it. Since districting decisions made by elected officials will inevitably take political considerations into account, everyone knows some element of partisanship must be allowed. Therefore, Roberts reasoned, striking down a partisan gerrymander would require the Court to answer an unanswerable question: “How much is too much?” As distasteful as gerrymandering is, he concluded, it’s up to the political process (and perhaps state courts), not federal judges, to address the problem.
This line of reasoning drove liberals up the wall. The problem with egregious partisan gerrymandering is precisely that it makes it all but impossible for the disadvantaged side to win back power. To say that it’s up to the North Carolina legislature to undo its gerrymander is to say that the state’s Republicans should voluntarily cede their advantage. The practical upshot of Thursday’s ruling will be to help Republicans (and Democrats, in states like Maryland) hang onto power without actually winning over a majority of voters.
In her dissent, Justice Elena Kagan excoriated the conservative majority for failing to recognize that lower federal courts have already been converging on a manageable test for identifying excessive partisan gerrymanders, one that looks at whether the purpose and effect of districting is to “substantially” entrench the dominant party in power by diluting the other party’s votes. “But in throwing up its hands,” she wrote, “the majority misses something under its nose: What it says can’t be done has been done.” Liberal commentators have gone farther. Prominent election law scholar Rick Hasen wrote in the New York Times that “the opinion written by Chief Justice John Roberts is disingenuous” because the Supreme Court regularly imposes vague-sounding standards like “reasonable” or “substantial” to draw boundaries in other areas of the law.
But while Roberts’s liberal critics have landed some punches, it’s a stretch to treat the gerrymandering ruling as a clear case of bad-faith partisan judging. Drawing the constitutional line between “partisan” and “too partisan” is no easy task. Consider Kagan’s response to Roberts’s question, “How much is too much?” Pointing to the truly extreme level of partisan precision in the North Carolina case, she treated the concern as trivial. “How about the following for a first-cut answer,” she wrote: “This much is too much.” It’s a cute line, but it’s not really an adequate answer. If the Court is to weigh in on these cases, it’s fair to expect it to establish a rule that goes beyond ad hoc judgments.
We may ultimately get a clearer answer to the question of whether Roberts’s ruling was really disingenuous. To show that the democratic process is up to the challenge of curtailing gerrymandering, he cites a litany of reforms, including nonpartisan redistricting commissions, which voters in Michigan and Colorado approved last fall. As it happens, the Court affirmed the constitutionality of such commissions in 2015, in a 5-4 decision with the now-retired Anthony Kennedy joining the liberals. Do you know who wrote the dissent? John Roberts. With Kennedy now replaced by Kavanaugh, it’s a safe bet that there are enough votes to overturn that precedent. But if Roberts chooses that path, it will be yet another blow to the flagging legitimacy of the institution he leads. And that much might really be too much.
