SCOTUS rules gerrymandering should be left to states, liberal Justice Kagan goes off: ‘First time ever…’

WASHINGTON, DC - SEPTEMBER 13: U.S. Supreme Court Associate Justice Elena Kagan participates in a discussion at the George Washington University Law School, September 13, 2016 in Washington, DC.<br /> (Photo by Mark Wilson/Getty Images)
(FILE PHOTO by Getty)

Left-wing Supreme Court Justice Elena Kagan reportedly fumed after the court’s conservative majority ruled Thursday that the issue of gerrymandering should be dealt with on the state level by the representatives whom the respective state’s citizens willingly voted into office.

So did liberal Democrats on social media. Many acted as if the ruling was a win for maliciously minded Republicans. In reality, the ruling was a win for both political parties. How so? Because the ruling benefited them both in the states which they control.

Case in point: “The court rejected challenges to Republican-drawn congressional districts in North Carolina and a Democratic district in Maryland,” the Associated Press explained.

Because Republicans controlled North Carolina when the maps in question were drawn, they got to decide its maps. And because Democrats likewise controlled Maryland when the maps in question was drawn, they got to decide its maps. Fair is fair, or so the conservative justices argued.

Current Maryland Gov. Larry Hogan, a Republican, was not pleased by the ruling:

“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary,” Chief Justice John Roberts wrote in the majority opinion.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Thanks to this ruling, a slew of lower court outcomes were just nullified.

“The decision effectively reverses the outcome of rulings in Maryland, Michigan, North Carolina and Ohio, where courts had ordered new maps drawn and ends proceedings in Wisconsin, where a retrial was supposed to take place this summer after the Supreme Court last year threw out a decision on procedural grounds,” the AP notes.

In her dissenting opinion, Kagan seemed to suggest that the court’s conservative justices, all of them judicial veterans with decades of legal experience, don’t pay attention.

“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote. “In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”

“Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.”

“[I]n throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done,” her furious dissent continued. “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).”


While it’s true federal courts have previously issued rulings on gerrymandering, those rulings were — much like Roe v. Wade — “an unprecedented expansion of judicial power.”

“The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life,” Roberts argued in the majority opinion. “That intervention would be unlimited in scope and duration — it would recur over and over again around the country with each new round of districting, for state as well as federal representatives.”

Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.

Democrats responded to the ruling by complaining that allowing duly elected state officials to draw district maps is somehow wrong and suggesting that partisan gerrymandering prevents America from holding free and fair elections:

But as noted by political scholar and commentator Noah Rothman, if partisan gerrymandering made fair and free elections impossible, then Democrats would not have been able to score as many victories as they did during the midterm elections last year:



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