Greg Bell: Supreme Court Refuses to Draw the Lines on Gerrymandering and Judicial Restraint

By Bell, Greg | Deseret News (Salt Lake City), July 5, 2019 | Go to article overview

Greg Bell: Supreme Court Refuses to Draw the Lines on Gerrymandering and Judicial Restraint


Bell, Greg, Deseret News (Salt Lake City)


In Rucho vs. Common Cause, a recent U.S. Supreme Court case, twin lawsuits asked the court to correct brazenly partisan gerrymandering of congressional districts by the Maryland and North Carolina legislatures. The Maryland Democrat legislative majority purposely and openly created districts to all but ensure Democrats would prevail in certain Maryland congressional districts. The Republican legislative majority in North Carolina did the same thing for its party. The elections turned out as the gerrymanderers intended.

Plaintiffs argued that these naked gerrymanders violate the U.S. Constitution by burdening the First Amendment rights of association and political activity of voters in the gerrymandered districts, deny their 14th Amendment rights of “equal protection of the laws,” and violate other provisions of the Constitution.

In a day when some courts try to remedy every wrong, we rarely see cases demonstrating such judicial restraint. When a case like Rucho reveals pronounced partisan maneuvering to control congressional election districts, one expects offended justice to right such egregious wrongs.

The other “conservative” justices joined Chief Justice John Roberts in the majority opinion ruling the gerrymander claims were non-justiciable political questions and, under the Constitution, are the jurisdiction of state legislatures and Congress — not the federal courts. Rucho made clear it does not condone racial gerrymandering, which the courts may still review.

Critics were apoplectic. In the minority opinion, Justice Elena Kagan wrote,

“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

As compelling as Justice Kagan’s arguments are, Rucho rests on a rationale of great — although, unfortunately, waning — significance: Just because you can do something doesn’t mean you should.

The Supreme Court has long refused to hear political questions, things the voters or their elected representatives should decide. …

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